Judge: Prosecutors can’t enforce Michigan’s abortion ban

LANZING, Mich. (AP) — A Michigan judge on Friday blocked district attorneys from enforcing the state’s 1931 abortion ban for the foreseeable future after two days of testimony from abortion experts, providers and the state’s chief medical officer.

The decision follows a state appeals court ruling this month that district attorneys are not covered by a May order and can enforce the ban following the U.S. Supreme Court’s ruling overturning Roe v. Wade.

“The harm to the body of women and people capable of becoming pregnant because of the failure to issue the injunction could not be more real, clear, present and dangerous to the court,” Oakland County Judge Jacob Cunningham said during his ruling Friday.

David Kalman, a lawyer for two Republican district attorneys, said an appeal is planned.

“The judge overlooked all the obvious legal errors and problems in this case, it seems to me, simply because the issue is abortion,” Kalman told The Associated Press after the hearing.

Cunningham filed a restraining order against district attorneys hours after the appeals court’s Aug. 1 decision and after a request by lawyers representing Democratic Gov. Gretchen Whitmer.

Although a majority of prosecutors in counties with abortion clinics said they would not enforce the ban, Republican prosecutors in Kent, Jackson and Macomb counties said they should be able to enforce the 1931 law. Macomb, which is in the north of Detroit, and Kent, in western Michigan, are the third and fourth most populous counties in the state, respectively.

Cunningham heard arguments Wednesday and Thursday in Pontiac before issuing the preliminary injunction, which is expected to leave abortion legal statewide until the Michigan Supreme Court or voters decide in the fall.

In his ruling, Cunningham found all three state witnesses “extremely credible,” while dismissing the testimony of defense witnesses as “useless and prejudicial.”

The 1931 Michigan law, which was triggered after the US Supreme Court’s decision to overturn Roe v. Wade, banned abortion in all cases except the life of the mother. The dormant ban was retroactively blocked from taking effect in May when Judge Elizabeth Glaicher issued a preliminary injunction.

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A state appeals court later said the preliminary injunction applied only to the attorney general’s office, meaning the vendors could be charged with a crime by some district attorneys.

While Kalman said during closing arguments Thursday that issuing a preliminary injunction was not the way the laws should be changed, attorneys representing Whitmer argued that allowing district attorneys to decide whether to enforce the 1931 ban. would cause confusion.

“I’m relieved that everyone in this state knows that it doesn’t matter what county you live in now, you as a provider will not be prosecuted,” Oakland County District Attorney Karen McDonald said after the ruling. Oakland is the second most populous county in Michigan. The prosecutor for Wayne County, which includes Detroit and is the state’s most populous state, also said it would not prosecute such cases.

A ballot initiative seeking to enshrine abortion rights in the state constitution garnered 753,759 signatures in July and is expected to ultimately decide the status of abortion access in Michigan. The amendment is awaiting final approval for the November ballot by the state Board of canvassers.

“This court finds that it is eminently in the best interest of the public to allow the people of the great state of Michigan to decide this matter at the ballot box,” Cunningham said Friday.

The state of Michigan’s abortion is expected to have a dramatic impact on the November general election in the battleground state, where Whitmer and Attorney General Dana Nessel, also a Democrat, have made abortion rights the centerpiece of their re-election campaigns.

“Absent this preliminary injunction, physicians face a very real threat of prosecution depending on where they practice,” Nessel said in a statement released after Friday’s ruling.


Joey Cappelletti is a corps member of the Associated Press/Report for America Statehouse News Initiative. America Report is a national nonprofit program that places journalists in local newsrooms to report on undercover issues.

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