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Michigan judge urged to keep block on enforcement of abortion ban

The Democratic governor is seeking to prevent prosecutors from enforcing a 1931 state law banning abortion after the Supreme Court overturned Roe v. Wade.

PONTIAC, Mich. (CN) — Abortion rights were on the line in Michigan on Thursday when a judge said he would soon decide if he should issue a preliminary injunction to preserve the right to abortion in the Wolverine State, following two days of arguments in a case filed by the Democrat governor seeking to prevent county prosecutors from criminally charging women under a 91-year-old law.  

On Wednesday, Oakland County Circuit Court Judge Jacob James Cunningham signed an order keeping his temporary restraining order blocking enforcement of Michigan's abortion ban in “full force and effect” until he decided on the broader request for a preliminary injunction. 

The judge then said Thursday he would “take some time to review all of the testimony” and issue a ruling at 10:30 a.m. on Friday.

At the beginning of the evidentiary hearing, attorney David Kallman, representing Republican prosecutors in two counties, argued for an immediate dismissal.

“To allow [Michigan Governor Gretchen Whitmer] to continue this lawsuit…is an abuse of our judicial system,” Kallman declared.

He added, “The governor has no standing.”

Assistant Attorney General Linus Banghart-Linn was confident in his opening statement the governor did indeed have standing to bring the lawsuit.

“The state draws its authority…based on Article 5, Section 8 of the Michigan Constitution, which empowers the governor to sue in the name of the state to enforce compliance with any constitutional requirement or retrain any constitutional violation,” he began.

“We have an allegation of a constitutional violation here," he added.

Banghart-Linn said that since the medical field is highly regulated, enforcement of the 1931 law – which criminalized abortion without exceptions for rape or incest, and was later rendered unconstitutional by the 1973 Supreme Court ruling in Roe v. Wade – would cause medical providers to withdraw care for fear of punishment. He also argue the law violated due process.

“There is no greater violation of body integrity than I can think of…the criminal law enforcement authority for the state of Michigan, to come to a person who is pregnant and say, you must,…despite any health risks, despite physical, psychological [concerns], despite the advice of your physicians…you must remain pregnant [or risk] potential prosecution,” he argued.

The attorney maintained that state officials have an “interest and duty” to promote public health to its citizens.

“When a whole category of necessary health care is taken off the table because of the threat of criminal enforcement, that pretty obviously impacts public health,” Banghart-Linn concluded.

Whitmer was subpoenaed to testify at the hearing by Kallman but that motion was quashed by the judge. Kallman appealed but the higher court disagreed and said she did not have to appear.

During his time to speak, Kallman methodically attempted to disassemble the assistant attorney general’s arguments.

“In Michigan, the right to abortion was always derived solely from the federal Constitution. It’s never been derived from the Michigan Constitution,” he said.

Kallman dismissed the bodily integrity argument and referenced a famous court case in the state that unsuccessfully tried a similar tactic.

“Take a look at the People v. Kevorkian, we’re all familiar with that situation,” he said. “Dr. Kevorkian argued that people have a right to bodily integrity to commit suicide, and he lost.”

Kallman decried the idea of extending the enforcement block through a preliminary injunction and told Cunningham why it was so harmful.

“Understand, if you grant this…that means abortions…then can be done at any point in the pregnancy up until the moment of birth without restrictions,” the attorney claimed. “Any baby could be killed right up to the moment of birth.”

Chief Deputy Attorney General Christina Grossi was irked by that claim and made a point to address it as “legally incorrect” and “not true” during closing arguments.

Oakland County Prosecutor Karen McDonald spoke briefly against enforcement of the law and was sharp in her criticism of potential options for women with unwanted pregnancies.

“For these women and girls, the notion that they would be forced to carry an…unwanted pregnancy to term…and at the end of that there will be willing and stable potential adoptive parents to take over? That is an illusion,” she stressed.

The hearing also featured testimony from several medical professionals.

Dr. Lisa Harris, an associate chair of obstetrics and gynecology at University of Michigan’s Michigan Medicine, said the 1931 law was too ambiguous and would certainly cause confusion.

“I just don’t want to break the law,” she told Grossi.

Harris said that abortion can provide an option to those who are in bad situations.

“A person can determine the course of their life,” she said.

Dr. Gianina Cazan-London, a physician at McLaren Health in Lansing with a specialty in obstetrics and gynecology, testified for the defense on how much she could see of a fetus when she performed an ultrasound.

Cazan-London said she could measure the baby, see movement of limbs, a heart beating and even the anatomy around 13 weeks gestation.

Dr. Natasha Bagdasarian, chief medical executive for the state, testified at the hearing that abortion is a safe procedure and a ban would only harm the public health.

“People would find a way to have an unregulated abortion,” she predicted.

However, when Priscilla K. Coleman, a professor of human development and family studies at Bowling Green University, testified for the defense, she said abortions increase the risk of mental health issues like anxiety, depression and suicide.

Coleman said women can feel pressure from their partners to have the procedure. She added that there are very few studies that reveal positive outcomes from abortions.

Whitmer filed her lawsuit in Oakland County in April as a preemptive strike that correctly assumed the Supreme Court would overturn Roe, which the justices did in June. Now that the federal right to an abortion has been overturned, Whitmer seeks to prevent enforcement of the 1931 law.

In May, in a separate case, Michigan Court of Claims Judge Elizabeth Gleicher granted a request from Planned Parenthood to suspend enforcement of the 91-year-old law.

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