LANSING, Mich. — Friday, following two days of testimony from abortion specialists, providers, and the state’s chief medical officer, a court in Michigan blocked county prosecutors from enforcing the state’s 1931 ban on abortion for the foreseeable future.
The decision follows a state Court of Appeals finding this month that county prosecutors were not bound by an injunction issued in May and may enforce the ban in the wake of the U.S. Supreme Court’s decision to overturn Roe v. Wade.
“The harm to the body of women and people capable of pregnancy in not issuing 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 Kallman, an attorney for two Republican county prosecutors, said an appeal is planned.
“The judge ignored all of the clear legal errors and problems in this case, it appears to me, simply because the issue is abortion,” Kallman told The Associated Press following the hearing.
Cunningham filed a restraining order against county prosecutors just hours after the 1 August judgment by the court of appeals and in response to a request from counsel representing Democratic Governor Gretchen Whitmer.
Although the majority of prosecutors in counties with abortion facilities have stated that they will not enforce the prohibition, Republican prosecutors in Kent, Jackson, and Macomb counties have stated that the 1931 legislation should be enforced. Macomb, located immediately north of Detroit, and Kent, located in western Michigan, are, respectively, the third and fourth most populous counties in the state.
Cunningham heard to arguments in Pontiac on Wednesday and Thursday before granting the preliminary injunction, which is expected to keep abortion lawful in the entire state until the Michigan Supreme Court or voters decide in the fall.
In his decision, Cunningham deemed all three of the state’s witnesses to be “very credible,” but he rejected the testimony of the defense witnesses as “unhelpful and biased.”
Michigan’s 1931 statute, which was enacted following the U.S. Supreme Court’s decision to overrule Roe v. Wade, prohibits abortion in all cases except where the mother’s life is in danger. A preliminary injunction ordered by Judge Elizabeth Gleicher in May prevented the dormant prohibition from taking effect retrospectively.
The state Court of Appeals eventually ruled that the preliminary injunction only applied to the attorney general’s office, meaning that some county prosecutors might charge providers with a felony.
While Kallman stated during Thursday’s closing arguments that granting a preliminary injunction is not how laws should be altered, Whitmer’s counsel claimed that allowing county prosecutors to decide whether to enforce the 1931 ban would result in uncertainty.
“I’m relieved that everyone in this state knows that it doesn’t matter what county you live in now, you are not as a provider going to be prosecuted,” Oakland County Prosecutor Karen McDonald said following the ruling. Oakland is the second-most populated Michigan county. The prosecutor for Wayne County, which includes Detroit and is the state’s most populous, had also said she would not pursue such cases.
In July, 753,759 signatures were submitted for a ballot measure attempting to codify abortion rights in the state’s constitution, which is expected to eventually determine the status of abortion access in Michigan. The amendment awaits final approval from the state’s Board of Canvassers for the November ballot.
“This court finds it is overwhelmingly in the public’s best interest to let the people of the great state of Michigan decide this matter at the ballot box,” Cunningham said Friday.
Whitmer and Attorney General Dana Nessel, also a Democrat, have made abortion rights a central tenet of their reelection campaigns, therefore the state’s abortion laws are expected to have a significant impact on the November general election in this swing state.
“Absent this preliminary injunction, physicians face a very real threat of prosecution depending on where they practice,” Nessel said in a statement issued following Friday’s ruling.