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Abortion Rights Remain Safe in Michigan, for Now, After Two See-Saw Rulings on County Prosecutors Deploying 1931 Ban

 
Michigan abortion protest

Abortion rights demonstrators gather to protest the Supreme Court’s decision in the Dobbs v Jackson Women’s Health case on June 24, 2022 in Detroit, Michigan.

Just hours after a Michigan appellate court issued a ruling allowing county prosecutors to deploy the state’s 1931 abortion ban, a different court issued a temporary restraining order restoring the status quo and blocking the long-dormant law.

If county prosecutors ultimately prevail, abortion would be effectively criminalized throughout much of Michigan — with harsh penalties.

The 1931 statute treats all abortions as felonies unless they’re necessary to “preserve” the life of a pregnant person. The law, which makes no exceptions for rape and incest, had remained dormant since the Supreme Court’s ruling in Roe v. Wade in 1973.

For now, Planned Parenthood of Michigan says, abortion remains legal in the Great Lakes State.

“The injunction barring enforcement of Michigan’s 1931 criminal abortion ban remains in effect and applies to all Michigan county prosecutors,” the organization said in a statement. “Under Michigan court rule MCR 7.215(F)(1)(a), ‘the Court of Appeals judgment is effective after the expiration of the time for filing an application for leave to appeal to the Supreme Court, or, if such an application is filed, after the disposition of the case by the Supreme Court.’ This means that the Michigan Court of Appeals ruling cannot take effect during the 21 day appeal window.”

Planned Parenthood of Michigan and local doctor Sarah Wallett have been challenging the more than 90-year-old statute for months.

In May, Michigan’s Court of Claims ruled that the state’s constitution guarantees the right to an abortion, even if — as ultimately occured — the U.S. Supreme Court ruled that the federal Constitution did not. The Dobbs ruling had been leaked before the time of the Court of Claims ruling, but the watershed decision had not yet been officially released.

Michigan Attorney General Dana Nessel (D), the nominal defendant in that case, is herself a supporter of abortion rights. Though Nessel did not seek to reverse that ruling’s findings, county prosecutors in Michigan — Jerard Jarzynka (R-Jackson County) and Christopher Becker (R-Kent County) did. They argued that, contrary to the original order, they did not serve under Nessel’s “control.”

A three-judge panel of the Michigan Court of Appeals agreed.

“Because county prosecutors have substantial discretion to carry out their duties to prosecute and defend cases in their respective counties, the fact that the Attorney General has supervisory authority does not transform what is otherwise a local official into a state official,” the court’s ruling states.

The court rejected the argument from Nessel’s office that the county prosecutors lacked standing to appeal the order because they were not parties.

“Although the injunction purports to enjoin anyone acting under the Attorney General’s control and supervision, MCL 14.30 does not give the Attorney General ‘control’ over county prosecutors,” the ruling states. “Rather, it provides that ‘[t]he attorney general shall supervise the work of, consult and advise the prosecuting attorneys, in all matters pertaining to the duties of their offices.’ Thus, although the Attorney General may supervise, consult, and advise county prosecutors, MCL 14.30 does not give the Attorney General the general authority to control the discretion afforded to county prosecutors in the exercise of their statutory duties.”

Nessel vowed to continue pushing for abortion rights in the state.

“Today’s ruling will not deter my efforts to continue to fight for Michigan women,” Nessel said in a statement. “The legal battle continues on multiple fronts and those of us who value access to reproductive healthcare and respect a women’s right to make the best decisions for herself, according to her own moral, cultural and religious beliefs are not backing down. While I respect the ruling from the court, it is by no means the final say on this issue in Michigan.”

Later on Monday, Nessel’s office sought—and received—a temporary restraining order against local prosecutors, including Jarzynka and Becker as named defendants.

“The legal fight in Michigan continues and this temporary restraining order ensures prosecutors cannot target women or providers in the short-term,” Nessel said. “Women should feel comfortable to move forward with their planned medical procedures and providers in those counties should feel confident to practice medicine free from the threat of prosecution while my department continues to pursue all legal options available to ensure reproductive healthcare in our state.”

Circuit Judge James J. Cunningham, from the 6th Judicial Circuit Court from the County of Oakland, set a hearing on the matter for Wednesday, Aug. 3 at 2 p.m. Eastern Time.

Update—Aug. 1 at 7:01 p.m. Eastern Time: This story has been updated to report that a separate court preserved the status quo in Michigan, by newly blocking county prosecutors from deploying the 1931 ban on separate grounds.

Read the court’s order here:

(Photo by Emily Elconin/Getty Images)

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Law&Crime's managing editor Adam Klasfeld has spent more than a decade on the legal beat. Previously a reporter for Courthouse News, he has appeared as a guest on MSNBC, BBC, NPR, PBS, Sky News, and other networks.