Oakland County judge blocks county prosecutors from enforcing abortion ban

Beth LeBlanc
The Detroit News

Lansing — An Oakland County Circuit judge issued a temporary restraining order Monday stopping 13 county prosecutors with abortion providers within their jurisdictions from enforcing the state's abortion ban. 

The order was issued as state officials scrambled to respond to a Michigan Court of Appeals ruling Monday morning that found county prosecutors could enforce the state's long-dormant abortion ban that had been blocked by a May preliminary injunction issued in the state Court of Claims.

In his order granting Gov. Gretchen Whitmer's request for a temporary restraining order, Judge Jacob J. Cunningham said the order was "necessary to prevent the immediate and irreparable injury that will occur if defendants are allowed to prosecute abortion providers under (the 1931 law) without a full resolution of the merits of the pending cases challenging the statute."

The judge, elected in 2018, scheduled a Zoom hearing on the matter for Wednesday. 

Cunningham's order came shortly after Whitmer made the request in her lawsuit filed in April against 13 county prosecutors with abortion clinics in their counties. 

The county prosecutors named as defendants in Whitmer's suit and now blocked from enforcing the law include prosecutors from the following 13 counties: Emmet, Genesee, Grand Traverse, Ingham, Jackson, Kalamazoo, Kent, Macomb, Marquette, Oakland, Saginaw, Washtenaw and Wayne.

Prosecutors from seven of the counties have said previously they agree with Whitmer's suit and would not enforce the law: Genesee, Ingham, Kalamazoo, Marquette, Oakland, Washtenaw and Wayne. 

Oakland County Circuit Judge Jacob J. Cunningham issued a temporary restraining order Monday stopping 13 county prosecutors with abortion providers within their jurisdictions from enforcing the state's abortion ban.

Whitmer sought the injunction just hours after a three-judge panel of the Court of Appeals ruled an injunction in a separate Planned Parenthood of Michigan case challenging Michigan’s abortion ban did not extend to county prosecutors — it just applied to state officials such as the attorney general. 

Several county prosecutors, including those in Jackson, Kent and Saginaw counties, have said they would enforce the law if brought a case that met the threshold set by the 1931 law. But Planned Parenthood, the plaintiff in that case, said prosecutors are barred from acting on Monday's Court of Appeals decision during a 42-day appeal window. 

Whitmer’s team said Monday’s order, regardless of when it takes effect, created uncertainty across the state and merited immediate action from Cunningham. 

“Health care providers in Michigan presently are forced to choose whether to continue offering health care services to women in this state or potentially face criminal prosecution, creating irreparable harm for women who need health care now,” Whitmer’s motion for a temporary restraining order said.

The appeals court panel's ruling would allow county prosecutors to file criminal charges against doctors and health workers who provide abortion services under Michigan's 1931 abortion ban. The 91-year-old law contains a narrow exception for abortion in cases when terminating a pregnancy is necessary to save the life of the mother.

Planned Parenthood of Michigan has argued the ruling doesn't take effect for 42 days — the window for a potential appeal to the Michigan Supreme Court — and any prosecutor who attempts to enforce the law before that appeal period expires should be held in contempt of a court order.

"Planned Parenthood of Michigan will continue to provide abortion services in accordance with the law," the group said in a statement. "PPMI patients can keep their appointments and our doors remain open."

But David Kallman, a lawyer for the two prosecutors in the case, pushed back on Planned Parenthood's claim that an appeal period delayed the ruling from taking effect. The wording of the order doesn't just say prosecutors are free to enforce the law going forward, the order says county prosecutors never were blocked from enforcing the law in the first place, Kallman said. 

While prosecutors differ county-by-county on whether they will enforce the 1931 law, hospitals and health care systems say they're trying to keep up with the varying developments in Michigan courts and adjust their policies accordingly. 

Implications for prosecutors, providers

In the Monday order that led to the rash of filings in Oakland County, appeals court judges said the Michigan Catholic Conference, Right to Life of Michigan and the two prosecutors lack standing to request Court of Claims Judge Elizabeth Gleicher's original injunction be overturned and her case assumed by the higher court. Gleicher's injunction in the Planned Parenthood case has been in place since May, before the U.S. Supreme Court overturned a half-century of abortion rights on June 24.

But Jackson County Prosecutor Jerard Jarzynka and Kent County Prosecutor Christopher Becker, the panel ruled Monday, are not bound by the injunction because they are not parties to the case nor could they be because the Court of Claims order covered state actors only.

"The preliminary injunction does not apply to county prosecutors," the three-judge panel wrote unanimously.

A ruling issued Monday by a three-judge Michigan Court of Appeals panel could allow Kent County Prosecutor Chris Becker and other county prosecutors to prosecute individuals who violate Michigan's 91-year-old ban on abortion.

Kallman called the decision "a victorious defeat."

"That's exactly what we wanted," he said of Jarzynka and Becker. "They were both very pleased with the result."

"Neither of them has a pending case in front of them right now. If a case is brought to them and the elements are there, they will prosecute," Kallman added prior to Cunningham's ruling.

In a Monday statement prior to Cunningham's order, Becker said he appreciated "the clarification" from the Court of Appeals. 

"I cannot and will not ignore a validly passed law," Becker said. "If a report is presented to this office, we will review it like we do any other report of possible criminal behavior."

Likewise, Jarzynka said he was bound by the state's "validly passed law on abortion."

"If a police agency submits a police report for a possible violation of Michigan’s abortion statute, we will review it like we do for any other report for possible charging and it will depend on what evidence is submitted and can we prove a criminal charge beyond a reasonable doubt," Jarzynka said.

Prosecutors in Cass, Charlevoix, Clinton, Hillsdale and Saginaw counties told The Detroit News on Monday they also would enforce the law if presented with findings meeting the criteria for a violation of the state's abortion ban. 

The implications of the Court of Appeals ruling were being considered by health care systems with hospitals or clinics in counties where prosecutors have indicated they are willing to enforce the 1931 abortion ban.  

"We are aware of the Michigan Court of Appeals’ decision. We’re reviewing the implications for our patients and providers," Henry Ford Health, which has hospitals in Jackson and Macomb counties, said in a statement released Monday.

The merged Beaumont-Spectrum health system with hospitals in Metro Detroit and west Michigan also weighed in, saying its officials were continuing to monitor developments in Michigan's courts.

"As we continue to provide reproductive health care to our communities, BHSH System believes that these decisions are both personal and private and best made between the patient and their physician," according to statement by BHSH System. "We are aware of and continue to monitor legal developments in the Michigan courts."

McLaren Health Care owns more than a dozen hospitals in Michigan, including McLaren Macomb Hospital, as well as hospitals in Ohio and Indiana. 

Ohio enacted a "heartbeat" law immediately following the U.S. Supreme Court's rollback of Roe v. Wade, and the Legislature there is considering a near-total ban. In Indiana, the GOP-controlled Senate passed a bill that would ban abortion at all stages with nearly no exceptions during a specially convened session on Saturday. 

"McLaren Health Care and our system hospitals are committed to providing the best care to our patients and communities we’re privileged to serve," McLaren Health Care Chief Medical Officer Dr. Justin Klamerus said in a statement to The News on Monday. "This is a complex legal and ethical matter for our society, our patients and the medical community.

"We are working with our patients and providers to stay aware of the changing laws while also ensuring the care provided is within those laws," Klamerus added. "We will continue to closely monitor legal proceedings occurring nationally and within state jurisdictions where we operate in Michigan, Ohio and Indiana."

Pending cases

The Monday order by Court of Appeals judges Stephen Borrello, Michael Kelly and Michael Gadola came after the anti-abortion groups requested the higher court take control of Gleicher's case and vacate her injunction. 

Gleicher issued her injunction in a suit brought by Planned Parenthood of Michigan against Attorney General Dana Nessel. She ruled Planned Parenthood was likely to succeed on the argument that there was a right to abortion in Michigan's constitution that overrode the state abortion ban, a law that dates back to the 1840s.

Michigan Court of Appeals Judge Elizabeth L. Gleicher

The judge ordered Nessel, a Democrat who declined to defend against the suit, to convey her order to county prosecutors.

But Jarzynka and Becker pushed back, arguing the injunction could not extend to them since they were county elected officials with their own authority independent from Nessel's. Nessel has argued as much in the past as well. 

"Under the totality of the circumstances, the core nature of a county prosecutor is that of a local, not a state official," the panel wrote in its Monday decision. "Because county prosecutors are local officials, jurisdiction of the Court of Claims does not extend to them."

Kallman noted that, under the law, prosecutions of abortion-related crimes have a six-year statute of limitations. While some prosecutors might now be committing not to prosecute abortion, their successors could decide to do so, he said.

Monday's appeals court ruling came three days after Gleicher denied a motion from the GOP-led Michigan House and Senate to disqualify herself from the litigation because she has made donations to Planned Parenthood.

Gleicher ruled Friday that recusing herself over "small contributions" to the abortion provider would be "simply unprecedented."

In addition to the seven Democratic county prosecutors who have said since earlier this year they would not enforce the abortion ban within their jurisdictions, other county prosecutors have said they hoped the Legislature would change the abortion ban law since its last update was more than nine decades ago.

"It needs to be updated before they expect local prosecutors to take away people's liberty based on that," St. Clair County Prosecutor Mike Wendling said in May.

Apart from the filing seeking superintending control, the House and Senate have filed appeals in the Court of Appeals regarding Gleicher's ruling. That appeal is still pending. 

The same day Planned Parenthood of Michigan filed its case against the attorney general in April, Whitmer filed a separate suit against 13 county prosecutors in Oakland County Circuit Court seeking a similar ruling that found a right to abortion is already enshrined in the state constitution. 

Whitmer also repeatedly requested the Michigan Supreme Court to rule on her case rather than allowing it to be decided and appealed in the lower courts first.

The high court's justices have not yet committed to take up the case and bypass lower courts, but they did send follow-up questions to Whitmer and have been allowing differing parties to weigh in via amicus briefs. 

Whitmer's filing for a temporary restraining order and Cunningham's immediate granting of it are some of the more significant filings in the Oakland County case in recent weeks. The Oakland County lawsuit has largely been the more sedate since the Planned Parenthood preliminary injunction was believed to have blocked county prosecutors. 

From the start, state officials had argued the Oakland County case would address the issue of county prosecutors more directly than the Planned Parenthood case. Nessel pointed out as much earlier this year.

Nessel has said she won't enforce the state's abortion ban, a position she said deprived the Planned Parenthood suit of the case or controversy it needed to have jurisdiction. Prosecutors named in Whitmer's suit, Nessel argued, could create a case or controversy down the road should they attempt to enforce the law. 

"Planned Parenthood would be better off if they were focusing on the governor’s case and filing an amicus on behalf of the governor and her actions," Nessel said in May.

eleblanc@detroitnews.com

Staff Writer Karen Bouffard contributed.