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Michigan abortion ban is — then isn’t — in effect after two court rulings

Protestors gathered outside the Supreme Court last year against abortion. In Michigan, a 1931 ban on the procedure is in legal limbo after the federal court overturned nationwide protections in June. (Shutterstock)
  • Oakland County judge issues temporary restraining order in closely watched abortion case
  • Order bars county prosecutors from enforcing Michigan’s 1931 abortion ban
  • Court of Appeals had ruled earlier Monday that a separate injunction did not apply to county prosecutors

Aug. 19: Judge: Michigan abortion ban ‘dangerous,’ old law unenforceable amid suits

LANSING — Abortion appeared to remain legal throughout Michigan late Monday after an Oakland County judge issued a temporary restraining order prohibiting local prosecutors from enforcing the state’s 1931 ban. 

Acting on a request from Democratic Gov. Gretchen Whitmer, Circuit Judge Jacob Cunningham issued the 3-page order roughly eight hours after a Michigan Court of Appeals panel ruling that could have criminalized abortion in parts of the state. 

The appeals panel had concluded a separate injunction prohibiting state enforcement of the 1931 law did not apply to county prosecutors. 

That, Cunningham wrote later Monday, made a TRO “necessary" to “prevent the immediate and irreparable injury that will occur” should county prosecutors be allowed to charge abortion providers under the 1931 law.

Attorneys are scheduled to argue the matter Wednesday in a Zoom hearing before Cunningham.

It was a head-spinning day on an issue that was thrown into uncertainty after the U.S. Supreme Court overturned Roe vs. Wade in June and left the legality of abortion to individual states. And as Monday's competing rulings made clear, the litigation is hurtling ever closer to the state Supreme Court.  

At immediate issue is the vitality of a 91-year-old state law would make it a crime for physicians to perform abortions in most instances. It was set to take effect after the demise of Roe, which had guaranteed the right to abortion nationwide for nearly 50 years.

That state ban was suspended in May by Court of Claims Judge Elizabeth Gleicher, who issued an injunction that prohibited Attorney General Dana Nessel and anyone under her "control or supervision" from enforcing it if Roe were overturned. 

Jackson County Prosecutor Jerard Jarzynka and Kent County Prosecutor Chris Becker — who have already signaled they would consider filing charges against abortion providers after Roe fell — asked the Court of Appeals to take over the case from Gleicher.

The three-judge appeals panel denied that request early Monday, ruling that Jarzynka and Becker did not have legal standing to challenge the injunction because Gleicher's order "does not apply to county prosecutors."

But the appeals court nonetheless found that Gleicher's order did not apply to local prosecutors, since her court only had authority to adjudicate cases involving the state, not local cases.

"The core nature of a county prosecutor is that of a local, not a state official," presiding Judge Stephen Borrello wrote. "Because county prosecutors are local officials, jurisdiction of the Court of Claims does not extend to them."

 

Borrello was appointed to the bench by former Gov. Jennifer Granholm, a Democrat. He was joined in the unanimous order by judges Michael Kelley and Michael Gadola.

Earlier in the day, Whitmer, who had filed a separate action urging the Michigan Supreme Court to declare that the state’s constitution protected abortion, called the Court of Appeals ruling "dangerous." She also filed court papers seeking a temporary restraining order against its enforcement in Oakland County’s Sixth Circuit Court. She chose Oakland County because that is where her entreaty to the state’s top court began in May. 

The appeals court order "clears a path" for county prosecutors to file criminal charges against abortion providers, Deputy Attorney General Christina Grossi wrote in the filing for Whitmer. 

"Healthcare providers in Michigan presently are forced to choose whether to continue offering healthcare services to women in this State or potentially face criminal prosecution, creating irreparable harm for women who need healthcare now," the court filing argued. 

Later Monday, after Cunningham’s order, Whitmer said she was “grateful” for the TKO, however long it remains in effect. 

The “lack of legal clarity” was another example of why the Michigan Supreme Court must quickly decide the issue, Whitmer said, according to a statement.

Planned Parenthood of Michigan, the state’s largest abortion provider, said in public remarks Monday that while it disagreed with the Court of Appeals ruling, the court rules prevented the decision from taking immediate effect.

“I want to make one thing abundantly here: Abortion is still safe, legal in Michigan today,” Paula Thornton Greear, CEO of Planned Parenthood of Michigan, said at a news conference Monday — after the court of appeals ruling but before the Oakland judge entered the fray.

Thornton Greear added that "Planned Parenthood of Michigan’s doors are open and they're going to stay open." She spoke for less than 90 seconds and took no questions.

That echoed comments earlier in the day by Mark Brewer, an attorney for the state’s Planned Parenthood, which is seeking to overturn the 1931 law. Brewer called the appeals court decision “wrong,” but said it would not take effect for three weeks, giving the group time to consider next steps, including a possible appeal. Those remarks, too, were before the Oakland TKO landed later in the day.

Attorney General Dana Nessel, a Democrat, opposes the 1931 law and has repeatedly said she will not enforce it even if the injunction is overturned in the courts. 

But Borrello, the appeals judge, noted in that court's ruling that while Nessel has the authority to "supervise, consult and advise county prosecutors," she cannot "control the discretion afforded to county prosecutors in the exercise of their statutory duties."

Monday's appeals court order was a "victorious defeat" for county prosecutors prepared to enforce the law, said David Kallman, an attorney representing Jarzynka and Becker.

While the appeals court dismissed the local prosecutors' case, "we got what we wanted," Kallman told Bridge Michigan. He noted that police have not yet forwarded Jarzynka and Becker any cases for potential prosecution.

"If a case is brought to them for review, they'll look at it, and if the elements are there, they will prosecute under the statute,” he said. 

Denise Harle, director of Arizona-based Alliance Defending Freedom, which represents Right to Life of Michigan, called the early Monday appeals ruling “a major step forward in allowing the county prosecutors to do their job, even if the attorney general refuses to do so.”

Michigan's 1931 law, if re-enacted, would make it a felony for anyone to perform an abortion in the state. The only exception would be to preserve the life of the mother.

Violations would be punishable by up to four years in prison and/or a fine of up to $5,000. Physicians who perform abortions could also face administrative penalties from the state, including revocation of medical licenses. Clinics, too, could face possible penalties.

In April, seven Democratic county prosecutors vowed not to enforce 1931 abortion laws, calling them “archaic statutes” that are “unconstitutionally and dangerously vague.” 

The same prosecutors Monday reiterated their positions. While the issue plays out in the courts, “we will not use our offices’ scarce resources to prosecute the exercise of reproductive freedom,” read a joint statement by prosecutors from Wayne, Oakland, Washtenaw, Ingham, Genesee, Kalamazoo and Marquette counties.

In Detroit, Ashia George, 30, a registered nurse at the Scotsdale Women’s Center, said Monday’s ruling only adds to the whipsaw of uncertainty on abortion access in Michigan.

“It just feels like it's just going to be this major back-and-forth, and days where we're closed and days where we're open,” she said. “I think maybe I was a little bit naive to think that we were safe, because we have (Gov. Gretchen Whitmer) and (Attorney General Dana Nessel) on our side.” 

George said she worried for patients, but also for staff, who dodge protesters while carrying out work that they see as a mission, not just a paycheck.  

“We're scared of not only not being able to provide care, but we're afraid of being criminalized for helping people,” she said. 

Jarzynka and Becker represent two of the 13 Michigan counties with at least one abortion provider. 

More than 1,400 women from Kent County had an abortion last year, accounting for about 5 percent of the 28,409 performed in the state, according to statistics from the Michigan Department of Health and Human Services. 

About 283 Jackson County women had an abortion last year, the same records show.

Kallman, the lawyer for the prosecutors who want to preserve their authority to file charges, said abortion providers in those Democratic areas should also be careful. "Prosecutors change, and they can get voted out of office. There's a six-year statute of limitations on these felonies.”

Nessel had previously said abortion rights in Michigan were hanging by a thread.

"The thread has torn," Nessel wrote on Twitter Monday, after the appeals court ruling. "Stay tuned for further developments on this. Appeals and additional motions on the pending cases are likely."

How the decision might reshape Michigan’s abortion access is unclear. As Bridge recently reported, wait times have stretched to three and four weeks in some of Michigan’s 25 abortion clinics as women from other states where abortion is restricted or banned cross the border for abortion care. 

Voters could also have a say in November: Reproductive Freedom for All, backed by Planned Parenthood and the ACLU, last month submitted 753,759 signatures for a potential ballot proposal to enshrine abortion rights in the Michigan Constitution

 

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