Michigan Judge Blocks Local Prosecutors From Enforcing Pre-Roe Abortion Ban

Topline

Michigan’s 1931 abortion ban will remain blocked, extending a previous order that only blocked the law’s enforcement for a few weeks, as a state judge ruled Friday that local prosecutors can’t try to punish those who perform abortions while a case against the law moves forward.

A flag spray painted with “Defend Abortion” hangs on June 24 in Detroit, Michigan.

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Key Facts

Oakland County Circuit Court Judge Jacob James Cunningham issued a preliminary injunction that blocks the law from being enforced until a final ruling is issued, calling the abortion ban “dangerous and chilling” and ruling it “simply does not pass constitutional muster.”

The judge pointed to “extremely credible” health experts put forward by the state, who testified to the court that the law was dangerously vague and could result in doctors not being able to provide essential medical care, and dismissed testimony from witnesses who supported the abortion ban, calling their arguments “unhelpful and biased.”

Though he acknowledged issuing an injunction is an “extraordinary and drastic use of judicial power,” the harm of not issuing one “could not be more real, clear, present and dangerous,” Cunningham said, while local prosecutors aren’t harmed by not being allowed to enforce the law.

Cunningham had previously issued an order on August 1 that temporarily blocked the law’s enforcement until a hearing could be held in the case—nullifying an appeals court ruling in a separate case that had been issued only a few hours before and allowed the law to be enforced.

Local prosecutors in Michigan’s Kent, Jackson and Macomb counties have asked to enforce the decades-old law, which outlaws all abortions except when the mother’s life is at risk and makes performing an abortion a felony manslaughter offense.

A separate court ruling has temporarily blocked the state from enforcing the law—which Michigan Attorney General Dana Nessel, a Democrat, has said she wouldn’t enforce anyway—but the ruling did not explicitly include county prosecutors, which has left the issue still up for debate.

Crucial Quote

“Like a chain is only as strong as its weakest link, our state is only as strong as its most vulnerable and at-risk populations,” Cunningham said Friday. “Criminalization of our medical professionals for treating the women seeking appropriate, safe, constitutionally protected medical care is an irreparable danger to our society at large.”

Chief Critic

“I find it astounding that [the state says], ‘We want to preserve the status quo,’” attorney David Kallman, who represented the local prosecutors in the case, argued at a hearing, according to a report in Bridge Michigan. Kallman has not yet responded to a request for comment on Cunningham’s ruling.

Contra

While several prosecutors have sought to enforce Michigan’s abortion ban, Bridge Michigan reports that county prosecutors in seven out of 13 counties with abortion clinics have said they will not enforce the law.

What To Watch For

Other legal challenges over the law, including Gov. Gretchen Whitmer’s lawsuit that initially led to the court blocking the law’s statewide enforcement and a separate Planned Parenthood-led lawsuit, are pending. Whitmer, a Democrat, has asked the Michigan Supreme Court to fast-track her abortion case and issue an ultimate ruling on the law’s legality, but the court hasn’t decided yet whether to take it up.

What We Don’t Know

How the midterms will affect Michigan’s abortion laws. The state is still deciding whether to take up a ballot measure that would amend the state Constitution to explicitly protect reproductive and abortion rights, which would nullify the 1931 law. (Challengers have sought to throw out the proposed ballot measure because words typed out in the proposal lack appropriate spacing.) Whitmer and Nessel are also up for reelection, and if they’re replaced by Republicans, it makes it much more likely that the state would start enforcing the pre-Roe law if allowed to in court, or pass new abortion restrictions without a Democratic governor to veto them.

Key Background

Michigan is one of several states that had abortion bans still on the books from before Roe v. Wade was decided in 1973, whose status has been contentious since the Supreme Court overturned the ruling on June 24. The laws have been among the trickiest to figure out in the wake of the court’s ruling: Wisconsin’s law led to abortion clinics stopping the procedure even as state leaders vowed not to enforce it, West Virginia’s ban was blocked in court and Arizona officials have disputed whether or not the state’s decades-old law should be allowed to take effect, which a court will consider Friday. Fox 17 reports local residents in Michigan have already reported abortions that have taken place in the state to law enforcement, but police have not investigated the reports.