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Pontiac – An Oakland County judge ruled Friday that county prosecutors cannot enforce the state’s 1931 abortion law because courts rule a lawsuit by Governor Gretchen Whitmer that was unconstitutional seeks to overturn the ban.
This means abortion will likely remain legal in Michigan until Whitmer’s case or a lawsuit by Planned Parenthood in the Michigan Court of Appeals is fully resolved.
Circuit Court Judge Jacob Cunningham said the evil of allowing prosecutors to criminalize abortions could not be “more real, clear, present and dangerous”. The 1931 abortion ban is inconsistent with the state Constitution, he said, because weaponizing the criminal law against abortion providers violates legality.
“A person who is carrying a child has the right to bodily autonomy and integrity and to a safe doctor-patient relationship free from government interference, as they have been able to do for almost 50 years,” said said Cunningham, adapting the concept of body integrity used by Claims Court Judge Elizabeth Gleicher May preliminary injunction in a family planning trial.
An injunction is ‘overwhelming’ in the public interest because it would allow Michigan voters to decide abortion rights at the ballot box, if a proposed constitutional amendment is found to contain enough valid signatures to get to the Nov. 8 ballot, the judge said.
The ballot initiative proposed by the Reproductive Freedom for All Ballot Committee would amend the Michigan Constitution to allow abortion until fetal viability, which is generally considered to be around 24 weeks but is defined in the language as when a child can survive outside the womb without “extraordinary medical measures.” The proposed wording includes an exclusion that would allow abortions after fetal viability to protect a mother’s physical or mental health.
“It’s the ultimate example of maintaining the status quo,” Cunningham said of his commission. “There is precisely no prejudice to the defendants in granting a preliminary injunction.”
Whitmer welcomed the judge’s decision while noting that his team would “remain vigilant in protecting reproductive freedom.”
“I am grateful for this decision which will protect women and ensure that nurses and doctors can continue to care for their patients without fear of prosecution,” the Democratic governor said in a statement Friday. “…” Michigan’s lack of legal clarity on abortion has already caused far too much confusion for women who deserve certainty in their health care, and medical workers who should be able to do their jobs. without fear of being thrown behind bars.”
Nessel also adopted the judge’s decision, saying that “restricting access to reproductive health care undermines the ability of physicians to provide appropriate care and deprives women of the right to decide the most intimate matters concerning their health, their body and their life.
“Sad day for the rule of law”
Attorney David Kallman, who represents Republican prosecutors in Kent and Jackson counties who have said they will review criminal cases under the 1931 law, said he was not surprised by the decision of the judge, but that he was disappointed. He plans to appeal the decision to the state Court of Appeals, where a three-judge panel will be chosen by blind lottery.
Kallman said Cunningham ignored legal issues he raised during the two-day evidence hearing.
“This is a sad day for the rule of law in Michigan,” Kallman said. “There is currently no constitutional right to abortion under Michigan law. The judge ignored it.”
Neither Kallman nor anyone representing the defendants in the case attended Friday’s hearing. Kallman said that since Friday’s hearing was announced until Thursday afternoon, he could not attend in person because he had business scheduled for Friday for other clients on Friday. But he noted Cunningham said on Thursday he could attend the hearing via Zoom.
Kallman has other clients he needs to take care of, Kallman said, unlike county prosecutors or the attorney general’s office, who have other people who can handle cases for them.
Assistant Attorney General Christina Grossi said she was surprised Kallman did not attend the hearing.
“When you suggest the case is as important as it is to you, you show up when it matters and that includes hearing the outcome of the case,” Grossi said.
Injunction Relief
Washtenaw County District Attorney Eli Savit and Oakland County District Attorney Karen McDonald, who are both Democratic prosecutors, attended Friday’s hearing and expressed relief at Cunningham’s ruling.
McDonald said prosecutors can now spend their time prosecuting “real, serious crimes” like gun violence, mass shootings, sexual assaults and human trafficking.
“I’m relieved that everyone in this state knows that no matter what county you live in now, you as a claimant are not going to be sued and as a wife and daughters (you) have a right now because of this ruling on reproductive freedom,” McDonald said.
Cunningham’s decision came after a two-day witness hearing where lawyers renewed their arguments for and against the temporary ban. It was the first hearing in the country since the overturning of Roe v. Wade with live testimony on the impact of allowing the criminalization of abortion.
The judge heard from five medical professionals – the state’s chief medical officer, a University of Michigan professor of obstetrics and gynecology and an emergency medical specialist from prosecutors and an OB-GYN and a psychiatrist from the retired Bowling Green University defense development — and lawyers on both sides.
Cunningham said he did not believe the defense witnesses were credible and he said he did not use their testimony to make his decision.
Whitmer argued that Michigan’s constitution provides a right to abortion that overrides the 1931 ban, which has largely lain dormant since Roe v. Wade in 1973. She sued in April to stop 13 county attorneys from enforcing the abortion provider law within their counties.
Michigan law prohibits abortions in all cases except when a pregnant person’s life is in danger.
On the same day Whitmer filed her lawsuit, Planned Parenthood of Michigan filed a separate abortion ban case in the Michigan Court of Claims against Michigan Attorney General Dana Nessel.
Gleicher ruled in May that Planned Parenthood was likely to succeed in his case and determined that Nessel could not enforce the 1931 ban.
Gleicher asked Nessel to forward this to county prosecutors, but a Michigan Court of Appeals panel ruled earlier this month that neither Nessel nor the Court of Claims had jurisdiction over county prosecutors, which exempted them from Gleicher’s block on the abortion ban.
Later the same day as the Court of Appeals decision, Cunningham issued a temporary restraining order preventing the 13 Whitmer prosecutors listed as defendants in his case from enforcing the abortion ban.
Kallman subpoenaed Whitmer for Wednesday’s hearing, saying she would have to explain how she would be harmed by the state’s abortion law. The Michigan Court of Appeals decided that Whitmer would not have to testify at the hearing this week.
Assistant Attorney General Linus Banghart-Linn said Wednesday that enforcing the abortion ban would violate the constitutional rights of Michigan residents. He said the ban was meant to control women and “keep women in their place”.
Kallman told Cunningham that the state’s argument was “silly” and did not meet the legal standards needed to obtain the preliminary injunction.
kberg@detroitnews.com