Topline
Michigan’s abortion ban from before 1973, when Roe v. Wade was decided, can soon be enforced again by local county prosecutors—but not state prosecutors—an appeals court ruled Monday, giving local officials license to take action against people who are performing abortions even as an order blocking the law from going back into effect statewide remains in place.
Pro-abortion rights protesters march through downtown Detroit, Michigan, on May 7.
Key Facts
A Michigan state judge ruled in May that the state could not start enforcing a 1931 abortion ban again if the Supreme Court overturned Roe v. Wade—as the court did a month later—allowing abortion to remain legal in Michigan at least while the legal challenge played out.
Two county prosecutors sued in an effort to block that order, but the Michigan Court of Appeals dismissed their case Monday, ruling they didn’t have standing to sue because as county prosecutors, they weren’t actually covered by the May decision.
The three-judge appeals panel ruled that county prosecutors are “local officials, not state officials,” and thus the court’s decision in May “does not apply to county prosecutors.”
That means county prosecutors can go after people who perform abortions under the 1931 law, which outlaws all abortions except when the mother’s life is at risk and makes performing an abortion a felony manslaughter offense.
The appeals court ruling will take effect in 21 days, and the state is still blocked from enforcing the law.
Michigan Attorney General Dana Nessel has previously said she would not stop county prosecutors from doing so if the court said it could be enforced, and emphasized Monday that she and local Democratic prosecutors would not be enforcing the ban.
Crucial Quote
The court’s ruling Monday was “exactly what we wanted,” David Kallman, the attorney representing Jackson County Prosecutor Jerard Jarzynka and Kent County Prosecutor Christopher Becker, told the Detroit News. While neither prosecutor has a “has a pending case in front of them right now” involving the abortion ban, the lawyer said, “If a case is brought to them and the elements are there, they will prosecute.”
What We Don’t Know
What this means for abortion access in Michigan. Planned Parenthood of Michigan said in a statement Monday it will continue to provide abortion services in the three weeks before the appeals ruling takes effect as it considers its options, but it’s unclear whether or not abortions will continue to be performed once the ruling takes effect. While Jarzynka and Becker have vowed to prosecute abortions under the pre-Roe law, Bridge Michigan reports that county prosecutors in seven out of 13 counties with abortion clinics have said they will not enforce the law, meaning abortion may be permissible in some parts of Michigan but not others. Kallman noted to Bridge Michigan that the law has a six-year statute of limitations, however, meaning providers could be dissuaded from performing abortions even in areas with friendlier prosecutors, because they could be replaced with a new prosecutor that decides to enforce the ban.
What To Watch For
The case determining whether the state can enforce the pre-Roe abortion ban or not is still pending, and Republican state lawmakers have appealed the case in an effort to have the law take effect statewide. Michigan voters may also soon have a say in how the state handles abortion rights: abortion rights activists have submitted enough signatures to likely get a question on the ballot in November asking if voters support a state constitutional amendment supporting abortion rights. That amendment, if approved, would mean abortion would remain legal in the state and nullify the pre-Roe law.
Key Background
The Supreme Court overturning Roe v. Wade has led to a wave of abortion bans nationwide, including “trigger bans” that automatically outlawed abortion with the court’s ruling, pre-Roe laws banning abortion and abortion bans that were enacted while Roe was in effect and had previously been blocked in court. Pre-Roe laws that haven’t been in effect since the 1973 ruling have been the trickiest to figure out in the wake of Roe being overturned: In addition to the debate over Michigan’s ban, abortions stopped in Wisconsin under its pre-Roe law even as state officials said they wouldn’t enforce it, and Arizona officials have debated whether or not the state’s 1901 law could go back into effect. Courts also blocked pre-Roe bans in West Virginia and Texas—although the Texas Supreme Court later let that law go back into effect—leading West Virginia lawmakers to move forward with a new abortion ban that would replace the blocked 19th century-era law.
Further Reading
Michigan Can’t Enforce Pre-Roe Abortion Ban If Roe V. Wade Is Overturned, Judge Rules (Forbes)
These Mich. prosecutors will not charge women who have abortions, or doctors who perform them (Detroit Free Press)
A women’s clinic run by two generations of women braces for the post-Roe era (Washington Post)
Abortion providers may face charges in Kent, Jackson counties, attorney says (Bridge Michigan)
Pre-Roe abortion bans are cutting off access — even laws that aren’t supposed to be in effect (The 19th)
Source: https://www.forbes.com/sites/alisondurkee/2022/08/01/michigan-abortion-ban-can-be-enforced-by-local-prosecutors-court-rules—but-not-state/