A court order seeking to block enforcement of a dormant law criminalizing most abortions in Michigan does not apply to county prosecutors, the Michigan Court of Appeals said Monday.
The massively consecutive decision means that the 1931 law banning all abortions except those performed to protect the life of a pregnant person essentially takes effect immediately, said David Kallman, attorney for the Great Lakes Justc Center, a conservative organization representing several Michigan prosecutors who challenged the injunction. .
“We’re thrilled. It’s wonderful. That’s exactly what we’ve been saying all along,” Kallman said Monday morning in a phone interview.
After:Michigan judge won’t walk away from abortion case: Argument ‘borders on frivolity’
After:Whitmer and family planning lawsuits weigh heavy in Michigan after high court overturns Roe
The decision could have a sweeping and sweeping impact in the state, where Governor Gretchen Whitmer, Attorney General Dana Nessel and many other pro-abortion rights advocates have fought to maintain legal access to abortion after the U.S. Supreme Court overturns Roe v. Wade. in June.
The ruling is likely to sow confusion and raise concerns about abortion access in Michigan, but abortion rights advocates will almost certainly try to appeal to the Michigan Supreme Court as soon as possible.
In a statement Monday, Planned Parenthood of Michigan said its doors will remain open for abortions.
“I want one thing to be very clear: Abortion is still safe and legal in Michigan today,” said Paula Thornton Greear, president and CEO of the organization.
“We are committed to protecting access to abortion in Michigan. We believe the Court of Appeals order is wrong.”
The organization also argued that court rules mean the order does not come into effect for a matter of time. Mark Brewer, an attorney for Planned Parenthood of Michigan, said the order doesn’t go into effect for 42 days, the time available for appeal. Earlier Monday, Planned Parenthood said the deadline was 21 days, but Brewer said they now believe it was longer.
Kallman’s organization said that was incorrect and that the injunction was no longer in effect. Brewer’s arguments also don’t necessarily mean prosecutors will wait to start bringing charges.
But if prosecutors try to bring charges under the 1931 law, Brewer said his organization would ask a court to hold that person in contempt.
“As long as the injunction is in place, providing abortions in Michigan is legal,” Brewer said.
Kaylie Hanson, director of communications for Whitmer, said in a statement that the governor is reviewing the order.
“As we consider the next steps, the people of Michigan need to know that Governor Whitmer will continue to fight like hell to protect a woman’s ability to make her own medical decisions with her trusted health care provider.” , said Hanson.
“Earlier this year, Governor Whitmer took executive action asking the Michigan Supreme Court to decide whether the state constitution protects the right to abortion. The Michigan Supreme Court may resume the governor’s trial at any time, and she should do so immediately to make it clear to the people of Michigan that their right to abortion remains unaffected.”
Previously, Nessel had said abortion rights in Michigan were hanging by a thread. In several tweets Mondayshe said “the thread has torn”.
“The Michigan Court of Appeals just ruled that MI’s 83 county prosecutors can now begin enforcing the abortion ban. But note that Democratic prosecutors have pledged to decline to enforce the ban, and the injunction still applies to my department,” Nessel said. .
“Stay tuned for further developments on this. Additional calls and queries on ongoing cases are likely.”
Nessel points to prosecutors in Wayne, Oakland, Washtenaw and other large Michigan counties that are home to abortion providers who have vowed not to enforce the 1931 law. But prosecutors in Kent, Jackson and Macomb counties – where there are also abortion providers – said they would look into possible criminal charges by local law enforcement.
The Michigan Court of Appeals decision is part of a broader demand by county prosecutors for the superior court to take control of the case that barred enforcement of the 1931 ban.
Earlier this year, Planned Parenthood of Michigan sued Nessel, asking the Michigan Court of Claims to determine that the state’s abortion law is unconstitutional.
In April, Claims Court Judge Elizabeth Gleicher issued a temporary injunction to block the law’s application in the event the U.S. Supreme Court overturns Roe. When the High Court overturned the landmark abortion ruling, Gleicher’s order was seen as the only action preventing the 1931 law from coming back into force.
Jackson and Kent county prosecutors then asked the Court of Appeals to intervene, arguing in part that Gleicher had no jurisdiction over county prosecutors.
The Court of Appeals denied the request to resume the case, but in doing so it gave those prosecutors the victory they wanted, Kallman said.
“The Court of Appeals essentially said (Gleicher) has no authority over county prosecutors, which is exactly what we were saying,” he said.
“It couldn’t be clearer.”
His clients do not plan to appeal. Kallman said a few weeks ago that he had not heard of any possible abortion-related criminal charges in Jackson or Kent counties.
After:Governor Whitmer again asks court to sue over abortion, citing BHSH’s change in stance
After:Supreme Court overturns Roe v. Wade, leaving abortion issues for millions in Michigan
The decision is separate and unrelated to a lawsuit Whitmer filed against prosecutors in counties with abortion clinics. The governor and conservative attorneys are currently awaiting a decision from the Michigan Supreme Court on whether to take up the case.
Nessel, a staunch abortion rights advocate, has pledged not to spend state resources advocating for the abortion ban. Once Gleicher decided that Planned Parenthood had a substantial chance of winning her lawsuit and issued the injunction, Nessel quickly said she would not contest the decision.
The Michigan legislature and conservative attorneys quickly intervened in the case after Gleicher’s decision, arguing that his decision did not apply to local prosecutors.
They also argued that the trial was premature, noting that no doctor was charged with allegedly performing an abortion in violation of the law. They also pointed to Gleicher’s acknowledged ties to Planned Parenthood.
Ultimately, the Michigan Supreme Court will likely decide the constitutionality of the 1931 abortion ban and whether there is a state constitutional right to abortion. Regardless of their decision however, there is an ongoing drive to amend the state Constitution through a ballot proposal so that it expressly includes the right to abortion.
The organizers of the ballot proposal filed more than 750,000 signatures, far exceeding the required amount. But signatures have yet to be reviewed and the Board of State Solicitors has yet to formally determine whether organizers have met all requirements before the matter can go to voters this fall.
Contact Dave Boucher at dboucher@freepress.com or 313-938-4591. Follow him on Twitter @Dave_Boucher1.