Judge: Michigan abortion ban ‘dangerous,’ old law unenforceable amid suits

• Judge issues preliminary injunction barring enforcement of 1931 Michigan law that makes abortion a felony
• ‘The court finds the statute dangerous and chilling,’ judge rules
• Prosecutors in Jackson, Kent and Macomb counties sought to enforce the ban after Roe v. Wade overturned

County prosecutors won’t be able to enforce Michigan’s decades-old abortion ban while legal challenges continue, a judge ruled Friday. 

Oakland County Circuit Judge Jacob Cunningham granted a request from Gov. Gretchen Whitmer’s legal team and issued a preliminary injunction to block enforcement of Michigan’s 1931 ban on abortion. 

Cunningham said the danger of harm to women and doctors if the ban were allowed to take effect “could not be more crystal clear.” 

“The court finds the statute dangerous and chilling to our state's population, childbearing people and the medical professionals that care for them,” Cunningham said.

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• Judge: Gov. Gretchen Whitmer doesn’t have to testify in abortion ban suit
• Michigan abortion ban remains on hold following court hearing Wednesday

Cunningham set a pretrial conference date for 9:30 a.m. Nov. 21 “in light of the likelihood of the matter being decided in the upcoming election.” That is a reference to a ballot measure that could go before voters Nov. 8  to enshrine abortion rights into the state constitution. 

An appeal is likely from Republican prosecutors in Kent, Jackson and Macomb counties. They have argued they should have been able to enforce the ban immediately after the U.S. Supreme Court overturned Roe v. Wade in June, leaving it up to states to regulate abortion.

Cunningham rebuked the prosecutors with his order, saying there is “zero” harm to them and challenging them to focus on criminal sexual conduct, homicide, child and elder abuse and other violent crimes “that they are fully capable of investigating.” 

The ruling, which came after two days of testimony, Is a victory for Whitmer, a first-term Democrat up for re-election who has voted to “fight like hell” to keep abortion legal in Michigan.

The statewide legality of abortion in Michigan had previously hinged on a more temporary order from Cunningham after the state Court of Appeals determined the first injunction issued against the 1931 ban only applied to the state attorney general’s office, not county prosecutors.

In a statement, Whitmer called the decision “welcome news,” but said "our work continues" as Republican leaders seeks ways to keep the 1931 ban in place. 

Anti-abortion advocates said they were not surprised by the decision. The group Right to Life of Michigan said on social media that Whitmer brought the case “because they have never had the votes to change Michigan’s abortion law, and doubt they will have the votes in November to add abortion into our constitution.”

While Democratic Attorney General Dana Nessel and prosecutors in several counties have said they would not prosecute abortion providers or their patients, some providers have said the threat of possible enforcement would stop them from providing abortions anywhere in Michigan if the ban is revived.

Thirteen of the state’s 83 counties have abortion clinics, state records show. Michigan has 27 providers, down from 70 in 22 counties in 1998, and the procedure is unavailable in large swaths of land north of Saginaw.

Prosecutors who have said they won’t enforce the ban are in counties that performed the vast majority of abortions: Wayne, Oakland, Washtenaw, Genesee, Ingham, Kalamazoo and Marquette. The counties comprise 44.2 percent of the state’s population but had 62 percent of nearly 30,000 in abortions in 2020.

The statewide rate of abortions per 1,000 women ages 15 to 44 was 15.1 in 2021. In Macomb, Kent and Jackson, where prosecutors are involved in the effort to enforce the 1931 ban, the rate is 19.3, 10.2 and 10.5, respectively. 

On Wednesday and Thursday, the court heard from both sides of the issue and five witnesses, including Michigan's Chief Medical Executive Natasha Bagdasarian and three doctors who have worked with pregnant patients. 

Bagdasarian said Wednesday the state has received questions from doctors about what is legal, noting that such guidance would be difficult if enforcement is left to local prosecutors.

On Wednesday, Lisa Harris, an obstetrician gynecologist and professor at the University of Michigan, said the ambiguity of the 1931 law makes it a “difficult law for doctors to follow” due to a lack of clear indicators of how high the risk of dying needs to be to meet the ban’s exception.

She said there’s ambiguity in what counsel medical practitioners should give to people with conditions like heart disease, lung disease or cancer that could significantly complicate pregnancies or put their health at risk.

There is no such ambiguity, a doctor testified on behalf of Republican prosecutors Thursday.

Gianina Cazan-London, who primarily works with high-risk pregnant patients but chooses not to perform abortions, said it’s clear when pregnancies have life-threatening consequences and would be protected under the 1931 law.

Another witness called by defendants, Priscilla Coleman, told the court Thursday her research at Bowling Green State University found correlations between abortion and negative mental health outcomes. Many experts in the field have challenged the validity of her claims. 

Cunningham dismissed both witnesses called by the defense as “not credible,” noting their  testimony was “seriously called into question” during cross-examination.

Whitmer’s legal challenge to the 1931 law began in Oakland County. But she has asked the Michigan Supreme Court to step in and fast-track a decision on whether the current language in the state constitution provides a right to abortion in Michigan. 

The high court is in summer recess and has not yet indicated whether it plans to consider Whitmer's request. A separate challenge to the 1931 law was filed by Planned Parenthood of Michigan and remains pending in the state courts.