A court order that sought to bar enforcement of a dormant law criminalizing most abortions in Michigan does not apply to county prosecutors, the Michigan Court of Appeals ruled Monday.
The massively consequential ruling means the 1931 law banning all abortions except those done to protect the life of a pregnant person essentially takes effect immediately, said David Kallman, an attorney for the Great Lakes Justc Center, a conservative organization representing several Michigan prosecutors who challenged the injunction .
“We’re ecstatic. It’s wonderful. That’s exactly what we’ve been saying all along,” Kallman said Monday morning in a phone interview.
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The decision could have a sweeping and drastic impact in the state, where Gov. Gretchen Whitmer, Attorney General Dana Nessel and many other pro-abortion rights advocates have fought to maintain legal access to abortion following the US Supreme Court’s reversal of Roe v. Wade in June.
The ruling is likely to prompt confusion and concern about access to abortion in Michigan, but abortion-rights advocates will almost assuredly try to appeal to the Michigan Supreme Court as soon as possible.
In a statement Monday, Planned Parenthood of Michigan said it’s doors will remain open for abortions.
“Planned Parenthood of Michigan will continue to evaluate our legal options and remains committed to protecting abortion access in Michigan,” read the unattributed statement.
“Planned Parenthood of Michigan will continue to provide abortion services in accordance with the law. PPMI patients can keep their appointments and our doors remain open.”
The organization also argued court rules mean the order does not take effect for 21 days, the amount of time allowed for an appeal But that does not necessarily mean mean prosecutors will wait to start bringing charges.
Kaylie Hanson, Whitmer’s chief communications officer, said in a statement the governor is reviewing the order.
“As we look at next steps, Michiganders should know that Governor Whitmer will continue to fight like to hell to protect a woman’s ability to make her own medical decisions with her trusted health care provider,” Hanson said.
“Earlier this year, Governor Whitmer took executive action asking the Michigan Supreme Court to resolve whether the state constitution protects the right to abortion. The Michigan Supreme Court could take up the governor’s lawsuit at any time, and they should do so immediately to provide clarity for Michiganders that their right to abortion remains unchanged.”
Previously, Nessel said abortion rights in Michigan were hanging by a thread. in several tweets Mondayshe said “the thread has turned.”
“The Michigan Court of Appeals has just ruled that MI’s 83 county prosecutors can now begin enforcing the abortion ban. But note that the Dem prosecuting attorneys have committed to refuse to enforce the ban, and the injunction still applies to my department,” Nessel said .
“Stay tuned for further developments on this. Appeals and additional motions on the pending cases are likely.”
Nessel is referencing prosecutors in Wayne, Oakland, Washtenaw and other large Michigan counties 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 — have indicated they would review possible criminal charges brought by local law enforcement.
The Michigan Court of Appeals’ decision came as part of a broader request from county prosecutors for the higher court to take control over 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 the state’s abortion law is unconstitutional.
In April, Court of Claims Judge Elizabeth Gleicher issued a temporary injunction that sought to block enforcement of that law in the event of the US Supreme Court overturned Roe. When the high court did reverse the landmark abortion ruling, Gleicher’s order was considered the only action preventing the 1931 law from going back into effect.
Prosecutors from Jackson and Kent counties then asked the Court of Appeals to weigh in, arguing in part that Gleicher had no jurisdiction over county prosecutors.
The Court of Appeals denied the request to take over the case, but in doing so gave these prosecutors the win they wanted, Kallman said.
“The Court of Appeals basically said (Gleicher) has no authority over county prosecutors, which is exactly what we were arguing,” he said.
“This couldn’t be more clear.”
His clients don’t plan to appeal. Kallman said as of a couple of weeks ago, he had not heard of any abortion-related possible criminal charges being brought in either Jackson or Kent counties.
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This ruling is separate and unrelated to the lawsuit filed by Whitmer against prosecutors in counties with abortion clinics. The governor and conservative lawyers are currently awaiting a decision from the Michigan Supreme Court on whether to take up that case.
Nessel, a staunch abortion-rights advocate, pledged not to spend any state resources defending the abortion ban. Once Gleicher decided Planned Parenthood had a substantial chance of winning its case and issued the injunction, Nessel quickly said she would not fight the ruling.
The Michigan Legislature and conservative attorneys quickly intervened in the case after Gleicher’s decision, arguing her ruling did not apply to local prosecutors.
They also argued the lawsuit was premature, noting no doctors face charges for allegedly providing an abortion in violation of the law. They also pointed to Gleicher’s admitted connections 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 an abortion. Irrespective of their decision though, there is an ongoing drive to change the state Constitution through a ballot proposal so that it expressly includes the right to an abortion.
The ballot proposal organizers filed more than 750,000 signatures, far exceeding the required amount. But the signatures still need to be reviewed and the Board of State Canvassers still needs to formally determine whether organizers met all requirements before the question can make it to vote this fall.
Contact Dave Boucher at firstname.lastname@example.org or 313-938-4591. Follow him on Twitter @Dave_Boucher1.