On July 10, 2026, the U.S. District Court for the Western District of Michigan (“District Court”) in Right to Life of Michigan v. Nessel pressed pause on reaching the constitutional question at issue: whether Michigan’s expansion of sex-based discrimination to include the termination of pregnancy violates Plaintiffs’ First Amendment rights. Instead, the District Court granted a preliminary injunction as it awaits clarification from the Michigan Supreme Court on the meaning of several amended provisions of Michigan’s Elliott-Larsen Civil Rights Act (“ELCRA”), the state analogue to Title VII under federal law.
Case Background
Plaintiffs, Right to Life of Michigan and Pregnancy Resource Center (“PRC”), are nonprofit organizations that hire, recruit and retain employees in accordance with their pro-life viewpoints. PRC is a Christian ministry providing family and pregnancy information to men and women consistent with its mission.
As part of their employment practices, Plaintiffs will not “hire or retain someone who has had an abortion, advocates for abortion, associates with people who have received an abortion or expresses pro-choice viewpoints.” PRC applies this same requirement to its volunteers. Plaintiffs further wish to publish job advertisements informing the public that employee conduct inconsistent with their beliefs may result in termination. PRC also states that it does not hire employees or use volunteers whose beliefs on religion, sexual orientation and marriage conflict with its own.
Plaintiffs brought suit against Michigan’s Attorney General, the Executive Director of the Michigan Department of Civil Rights and its eight members, alleging that ELCRA’s expanded definition of “sex” prohibits the aforementioned practices in violation of their First Amendment rights.
ELCRA and the Meaning of “Termination of a Pregnancy”
ELCRA prohibits employers from discriminating “because of sex,” and its 2023 amendment expanded the definition of “sex” to include “the termination of a pregnancy.” Accordingly, Michigan law bars employers from discriminating against “an individual affected by pregnancy, childbirth, the termination of a pregnancy or a related medical condition . . .” As a result of the amended definition, several ELCRA provisions are implicated, including those governing hiring practices, job postings and employee benefits.
Plaintiffs argue that ELCRA prohibits not only discrimination against individuals who have had an abortion but also discrimination based on advocacy for abortion rights or association with individuals who have had abortions. In support, Plaintiffs contend that ELCRA—like Title VII—protects individuals from discrimination based on their association with members of a protected class. Defendants, by contrast, contend that Plaintiffs’ conduct is not prohibited under their interpretation of the statute, arguing that ELCRA prohibits discrimination only against individuals whose own medical history includes the termination of a pregnancy.
District Court Refrains from Answering, Proposes Clarifying Questions to Michigan Supreme Court
At issue in the case is whether ELCRA’s prohibition on sex-based discrimination reaches employment decisions based on advocacy and association with pro-choice movements or—alternatively—only individuals with a terminated pregnancy on their medical records.
The District Court denied both of the Defendants’ motions to dismiss, rejecting their argument that Plaintiffs lacked standing absent any past enforcement. The District Court emphasized that a plaintiff need not show prior enforcement against its own conduct and that the State’s refusal to disavow enforcement against Plaintiffs weighed heavily in favor of a credible threat.
As a federal district court, its interpretation of ELCRA would not bind Michigan courts. Therefore, before reaching the constitutional merits, the District Court certified several questions to the Michigan Supreme Court, seeking a binding interpretation of ELCRA’s amended provisions. These questions include whether:
- Employers may decline to recruit, hire, employ, retain or accept as volunteers individuals who have had an abortion, advocate for abortion rights, associate with individuals who have obtained abortions or express pro-choice views;
- Employers may publish job postings or other employment-related statements expressing a preference against applicants based on the foregoing conduct, associations or viewpoints;
- Employers may decline to cover abortion-related services or drugs in employee health plans that are otherwise provided equally to all employees; and
- ELCRA’s protections extend only to individuals who have obtained an abortion or also to individuals who advocate for abortion rights, associate with individuals who have obtained abortions or express pro-choice viewpoints.
While it awaits a response from the Michigan Supreme Court, the District Court granted a preliminary injunction covering only Plaintiffs, leaving ELCRA enforceable against all other Michigan employers.
Hall Render will continue to monitor developments in the litigation.
Practical Takeaways
- Evaluate Employment Criteria and Postings. Employers with viewpoint- or conduct-based hiring criteria should evaluate their exposure under both interpretations of ELCRA, which should extend to job posting and application materials.
- Michigan Employers are Still Subject to ELCRA Enforcement. ELCRA remains fully enforceable against all other Michigan employers. The preliminary injunction protects only the two Plaintiff organizations and their identified positions.
- Uncertainty in Health Plan Coverage. Whether ELCRA compels abortion coverage in health plans or merely requires employers to offer identical plans to all employees remains unresolved. Employers should review their current plans and consider a procedure in the event that new binding law requires a change in offered health plans.
- Review Volunteer Criteria. Employers should review volunteer eligibility criteria and related policies to assess potential risk under both plaintiff and defendant interpretations of ELCRA pending guidance from the Michigan Supreme Court.
For further information or assistance regarding this topic, please contact:
- Jonathon A. Rabin at (248) 457-7835 or jrabin@hallrender.com; or
- Your primary Hall Render contact.
A special thanks to Summer Associate Julia Hallauer for her assistance with the preparation of this article.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
