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Michigan judge blocks county prosecutors from enforcing 1931 abortion ban

Preserving 50 years of status quo, the judge found, was sufficient to justify a preliminary injunction.

LANSING, Mich. (CN) — A Michigan judge entered a preliminary injunction Friday morning barring enforcement of the state’s 91-year-old ban on abortions, preventing county attorneys from seeking felony penalties for women who receive them. 

Oakland County Circuit Court Judge Jacob James Cunningham ruled from the bench Friday to grant Michigan Governor Gretchen Whitmer’s request for a preliminary injunction to replace a temporary restraining order he renewed last week. Both orders prevented county prosecutors from pursuing criminal charges for abortions under a 1931 law, which criminalized abortions without exceptions until it was rendered unconstitutional by the Supreme Court’s 1973 Roe v. Wade ruling. 

“The decision to have, or not to have, a child overwhelmingly affects women, and not men, disproportionately,” Cunningham said. As such, he found, Whitmer and her allies had adequately shown that a ban would harm women’s rights to due process and equal protection, and that enforcing it prior to a final decision would create legal uncertainty for healthcare providers and patients. 

Cunningham also noted that a proposed 2022 ballot initiative would amend the state constitution to protect abortion up to the point of fetal viability, usually considered to be around 24 weeks.

“It is likely the citizens will decide this issue, one way or another,” the judge said, adding that maintaining a 49-year status quo until Election Day would not harm prosecutors. 

Whitmer, a Democrat, sued to prevent the law’s enforcement in April, two months ahead of the high court’s overturn of Roe in Dobbs v. Jackson Women’s Health. Whitmer, through the office of Democratic Attorney General Dana Nessel, has argued that the statute violates the state constitution’s due-process guarantee, regardless of a 1973 Michigan Supreme Court decision that upheld the law by exempting abortions protected by Roe. 

Nessel’s office is on the other side of a separate suit seeking to overturn the ban, brought against them in April by Planned Parenthood. That case, too, has a standing preliminary injunction suspending the ban, but the Michigan Court of Appeals later found that the issuing court, the Michigan Court of Claims, did not have jurisdiction over county prosecutors. Later that day, Cunningham issued a temporary restraining order which did restrain those prosecutors. 

Opposing Whitmer, attorneys representing Republican county prosecutors have argued that she does not have standing to bring the suit and that the Michigan Constitution makes no guarantees of abortion rights.

“In Michigan, the right to abortion was always derived solely from the federal Constitution,” attorney David Kallman said at an evidentiary hearing on Wednesday. Kallman also argued that the state’s assertion of bodily-autonomy protections went against precedent established during the 1999 trial of Michigan assisted-suicide pioneer Jack Kevorkian. 

Both sides also brought medical witnesses to that evidentiary hearing, a tactic that Cunningham made clear worked much better for the plaintiffs than the defendants. Cunningham expressed alarm at a contention by defense witness Priscilla K. Coleman, a professor of human development and family studies at Bowling Green University, that “only 20%” of parents express resentment toward children they carry to term after considering abortions. Cunningham also cast aspersions on data Coleman presented, and said that a claim that “all births, including rape, are simply ‘part of womanhood’” got no traction with him. 

The plaintiff witnesses' expressions of concern that their recommendations to patients could run afoul of the law, meanwhile, made recurring appearances in Cunningham’s order. 

Abortion rights are a major campaign plank for both Whitmer and Nessel in their 2022 reelection campaigns. In a statement following the ruling Friday, Nessel praised the decision.

“Uncertainty around the law has a chilling effect on the conduct of doctors and therefore limits access to care for Michigan women,” she wrote. “Absent this preliminary injunction, physicians face a very real threat of prosecution depending on where they practice.” 

“There is no doubt that the statue (sic) criminalizing abortion is in direct conflict with the ability of the medical community to provide the standard of care consistent with their education, training, expertise and oath,” she added. 

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