Medical Providers Sue Michigan Governor Over Shut-Down Orders

Medical providers in Michigan want the state to reopen, telling a federal court that Gov. Gretchen Whitmer (D) overstepped her bounds by extending emergency Covid-19 orders that prohibit all nonessential medical treatments.

Three health-care practices and a patient sued Whitmer, Attorney General Dana Nessel (D) and state Health and Human Services Director Robert Gordon in the U.S. District Court for the Western District of Michigan Tuesday. They want the court to declare the orders unconstitutional and require the state to allow them to reopen.

Whitmer declared a state of emergency in March with the goal of “flattening the curve” and preventing the coronavirus from spreading and overwhelming the state’s medical system. On April 27, Whitmer said in a press conference that the curve had flattened.

The Republican-led Michigan legislature declined to extend the orders beyond April 30, but Whitmer “redeclared” the emergency and announced a phased-in reopening in early May, the health-care providers say.

The orders can’t be applied to medical providers and patients because the governor can’t legally redeclare an emergency that’s already ended, the complaint says. The orders, moreover, are unconstitutionally vague, violate procedural and substantive due process, and violate the dormant commerce clause, it says.

The providers are “facing dire financial outlooks that could very well spell disaster for—and permanent shuttering of—their businesses,” while patients haven’t been able to get the care they need, the complaint says.

Causes of Action: Michigan Constitution’s separation of powers and non-delegation clauses; U.S. Constitution’s due process and commerce clauses.

Relief: Declaratory judgment allowing providers to reopen for business, declaratory judgment that the executive orders are unconstitutional, order blocking state from enforcing the orders against providers, damages, costs and attorneys’ fees.

Response: The governor’s office doesn’t comment on pending litigation as a matter of policy, a spokesman for Whitmer told Bloomberg Law.

Attorneys: Miller Johnson and Mackinac Center Legal Foundation represent Midwest Institute of Health PLLC, Wellston Medical Center PLLC, Primary Health Services PC, and Jeffery Gulick.

The case is Midwest Inst. of Health, PLLC v. Whitmer, W.D. Mich., No. 20-cv-414, filed 5/12/20.