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Judge stops county prosecutors from enforcing Michigan's 1931 abortion ban in wake of Court of Appeals ruling

Posted at 5:23 PM, Aug 01, 2022
and last updated 2022-08-01 23:22:50-04

(WXYZ) — An Oakland County Judge has just issued a temporary restraining order – blocking county prosecutors from pursuing criminal charges in abortion cases.

Video below is our previous story from before the restraining order was issued:

Michigan abortion ban takes effect in 21 days following Court of Appeals ruling

After today’s Court of Appeals ruling that at first allowed county prosecutors to go after abortion providers – Governor Gretchen Whitmer asked another court for a restraining order – and that request has just been granted.

Oakland County Circuit Court Judge James Cunningham just granted a Temporary Restraining Order. That means local prosecutors cannot enforce a 1931 law that makes abortion a crime in Michigan.

In his order, the judge said this was necessary in order to prevent the immediate and irreparable injury that would occur if prosecutors are allowed to go after abortion providers.

This is a separate case from the one the Court of Appeals ruled on today – but as of this moment, it appears this restraining order means no one can prosecute abortion providers.

There will be a hearing in Oakland County on this on Wednesday.

The latest ruling from Michigan’s Court of Appeals, issued Monday, said Michigan’s 83 county prosecutors could charge health care providers with a crime for performing abortions unless the life of the mother was at risk.

The new development stems from a Planned Parenthood lawsuit filed in May. In that case, Court of Claims Judge Elizabeth Gleicher issued an injunction, barring any Michigan prosecutor from enforcing a 1931 law that makes performing an abortion a crime.

But prosecutors from Kent County and Jackson County asked the Court of Appeals to step in, arguing they were local officials -- not state officials – so the injunction did not apply to them.

“The Court of Claims has no jurisdiction over local county officials of any kind: county treasurers, county commissioners, county prosecutors, township officials, city officials – it doesn’t matter – any lower-level local authority, the court of claims has no jurisdiction over them at all. Period,” said Attorney David Kallman of the Great Lakes Law Center.

Kallman represents the two prosecutors who challenged that injunction.

“We have proper processes and laws in place and proper jurisdiction, and judges – the first thing they look at is, do they have jurisdiction to hear a case? And if they don’t have jurisdiction they’re supposed to dismiss it. So clearly Judge Gleicher had jurisdiction to hear a case involving Dana Nessel, she’s a state official. But the minute Planned Parenthood said to Judge Gleicher, ‘we want to bind all the county prosecutors’ that judge should have said ‘no, I don’t have the jurisdiction,’” said Kallman.

Kallman called the ruling a “victory for the rule of law.”

Prior to the restraining order being issued, Planned Parenthood of Michigan’s President and CEO Paula Thornton Greear says they were still weighing their legal options, but she stressed that the Court of Appeals order won’t take effect for at least 21 days.

“I want to make one thing abundantly clear: abortion is still safe and legal in Michigan today,” said Greear. “We’re committed to protecting abortion access in Michigan. We believe the Court of Appeals order is wrong. Any prosecutor who attempts enforcement before that period of time would be acting outside the law and they should be held in contempt.”

Ever since the U.S. Supreme Court struck down Roe v. Wade, Pro-Choice advocates have been trying to get the law changed. There is still a separate pending lawsuit from Governor Whitmer against county prosecutors that could be decided by the Michigan Supreme Court, and a ballot proposal effort to change the law is also underway.

Whitmer filed the request for the temporary restraining order late Monday in the separate lawsuit she first filed back in April. She’s hoping to prevent the 1931 law from being enforced. The restraining order was swiftly granted. Whitmer is still waiting to see if the Michigan Supreme Court will pick up the case.

Seven Democratic prosecutors, from Oakland, Wayne, Ingham, Washtenaw, Genesee, Kalamazoo, and Marquette Counties all say they won’t spend county resources to enforce this law. In a joint statement, they said, “We cannot and will not support criminalizing reproductive freedom or creating unsafe, untenable situations for health care providers and those who seek abortions in our communities.”

The 1931 law allows the prosecution of health care providers, not the mother seeking the abortion.

The Michigan State Medical Society also issued a statement from Kevin McFatridge, Chief Operating Officer:

“As a Society, we have always been and continue to be opposed to the potential criminalization of physicians and their patients in making health care decisions. Physicians and their patients should be free to consider, discuss, and pursue medical procedures guided by a physician's best medical judgment and a patient’s physical health and safety. The ruling by the court today goes against these fundamental principles of the patient-physician relationship.”