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Michigan judge rules prosecutors can’t enforce 1931 ban on abortion

Supporters of Planned Parenthood rally outside a clinic in Detroit on Feb. 11, 2017. (Rebecca Cook/Reuters)

Abortion in Michigan will remain legal for the time being after an Oakland County judge ruled Friday to grant an injunction that would block enforcement of the state’s 91-year-old ban on the procedure.

Democratic Gov. Gretchen Whitmer in April sued to block the law from taking effect if Roe v. Wade were overturned, kicking off months of a legal back-and-forth that’s expected to continue until the November election, when a measure that would enshrine abortion rights in the state constitution is expected to be on the ballot.

After a lengthy exposition of his decision, Circuit Court Judge Jacob J. Cunningham’s determination was fairly simple: The plaintiffs faced far greater harm if the 1931 abortion ban — which could be imminently overturned by the state supreme court or superseded by a voter referendum this fall — were enforced.

“Though the court appreciated both sides of this debate are passionate in their convictions, by not issuing an injunction today the court would send the health-care system into crisis, the extreme costs of which would then be put on the women of our great state and, not lost on the court, without any repercussion for the men who, without a doubt, are a necessary component to create a pregnancy,” Cunningham said.

The 1931 law makes almost all abortions a felony with no exemptions for rape or incest, allowing it only in the vaguely defined instances where abortion is necessary to “preserve the life” of the mother. Abortion providers and people who use medication to self-manage an abortion could face up to four years in prison.

Democrats seek edge with women as Michigan prepares to vote on abortion

Michigan, a perennial swing state, is shaping up to be the fiercest battleground over abortion access in the post-Roe era. The ultimate fate of abortion access in the state will have downstream effects on people seeking abortion in surrounding states given Michigan’s location. Illinois and Minnesota are the only other states in the Midwest that have protected abortion access, as of now. Wisconsin is in a similar situation as Michigan, with its purple electorate and a Democratic governor clashing with an antiabortion Republican legislature.

Whitmer praised Friday’s ruling, saying she would continue working to ensure that the 1931 law never takes effect again.

“The lack of legal clarity about abortion in Michigan has already caused far too much confusion for women who deserve certainty about their health care, and hardworking medical providers who should be able to do their jobs without worrying about being thrown behind bars,” she wrote.

Friday’s ruling is the latest turn in Michigan’s dizzying back-and-forth over the legality of abortion.

After Witmer sued to preemptively protect abortion access in April, a court of claims judge in May issued a preliminary injunction to prevent state Attorney General Dana Nessel (D) and local prosecutors from enforcing the 1931 ban (Nessel, Whitmer’s ally on abortion rights, said she had no intention to enforce the ban).

But on Aug. 5, Michigan’s appellate court ruled that the preliminary injunction did not apply to local prosecutors, including 13 who expressed a desire to enforce the ban. Soon after, Whitmer sought court intervention in Oakland County; Cunningham issued a temporary restraining order, which once again blocked the 1931 law from being enforced until the court ruled further.

Gretchen Whitmer’s abortion fight — from the porch with her daughters

Running alongside the Whitmer-initiated court battle is a second lawsuit filed by Planned Parenthood of Michigan that seeks to bar Nessel’s office from enforcing the ban while the law is under reconsideration.

“There will be providers who could be charged with felonies that will result in loss of their liberty if incarcerated and livelihood if they lose their medical license,” Cunningham said in court Friday. “The number of women impacted under the scenario where they’re forced to give birth or to relocate to seek medical care [or] suffer irreversible uterine damage from an untreated ectopic pregnancy — to name a few plausible of many horrific outcomes — is unquantifiable for purposes of this scenario.”

By contrast, he said the court found “no harm whatsoever to the defendants being enjoined from being able to enforce this one particular statute.”

Cunningham indicated that the desire to prosecute a ban that hasn’t been used in more than half a century betrayed selective — and uncompelling — interest by the defendants. Not being allowed to prosecute a law they haven’t prosecuted for decades would not stop district attorneys from pursuing other, more pertinent crimes on the books.

“The county prosecutors are also free to exercise their discretion to prosecute under MCL 7.50.30 — the crime of adultery, also a felony — which as far as this court is aware has been declined to be prosecuted in any Michigan jurisdiction in all recent memory,” he said.

The State Board of Canvassers will meet at the end of the month to determine whether the voter referendum to change the state constitution to protect abortion rights appears on the ballot.