Prosecutors can't enforce Mich. abortion ban until judge decides on injunction

Pontiac — Oakland County Circuit Judge Jacob Cunningham signed an order Wednesday keeping his temporary restraining order blocking enforcement of Michigan's abortion ban in “full force and effect” until he decides on a broader request for a preliminary injunction. 

Cunningham made the announcement at the start of what is expected to be a two-day hearing over the potential for a preliminary injunction. Such as order would block county prosecutors from enforcing the state's abortion law as the courts consider a lawsuit brought by Democratic Gov. Gretchen Whitmer seeking to overturn the abortion ban as unconstitutional.

The evidentiary hearing began Wednesday in Oakland Circuit Court with attorneys renewing their arguments for and against the temporary ban and medical experts weighing in from the witness stand. It appears to be the first court hearing in the nation held about the impact of a state abortion law since the U.S. Supreme Court ruled to overturn Roe v. Wade and return abortion policy decisions to the states. 

It occurred as anti-abortion and abortion rights protesters rallied outside the court.

Linus Banghart-Linn, an assistant state attorney general, told Cunningham that the judge would hear testimony supporting state arguments that enforcement of the law criminalizing abortion would violate the constitutional rights of Michigan residents, including their right to due process, equal protection under the law and “bodily integrity” in seeking an abortion.

“It (law) was designed to control the destiny of women and choices at their discretion,” Banghart-Linn said. “Crudely put, it (law) was used to keep women in their place.”

Attorney David Kallman, representing Republican prosecutors in Kent and Jackson counties, told Cunningham the state is making a “silly argument” and can’t meet the legal standards needed to obtain the preliminary injunction.

“’Put women down?’ Are you kidding me,” Kallman said. “No one is alive today that knows why that law was written. … We have lots of old laws on the books. You have a right to try and change law, but you can’t pick the ones you want to enforce. And asking you to do that, judge, is prejudging this case…

“Doing that would give Michigan the most permissive abortion law in the nation and put us on a par with China and North Korea.”

The first two witnesses called by the state both expressed concerns about the impact of prosecuting people seeking abortions or those providing them would have on the public health system in Michigan. The state's 1931 law has already made it “very hard” to provide help to women seeking abortions, said Dr. Lisa Harris, an obstetrician-gynecologist and associate director of Obstetrics and Gynecology at University of Michigan Michigan Medicine.

Michigan attorney David Kallman, who is representing two Republican county prosecutors, argued before Oakland County Circuit Judge Jake Cunningham that "You have a right to try and change law, but you can’t pick the ones you want to enforce."

“I’ve seen some people fully panicked,” Harris said. “This has affected a lot of doctors. We don’t want to go to jail. But we don’t know what the law will be.”

Kallman declined to cross-examine Harris.

The second witness called Wednesday was Dr. Natasha Bagdasarian, the state's chief medical officer.

“Abortion is a public health issue,” Bagdasarian declared, noting it affects women, especially women of color, disproportionately. “The old law doesn’t take into consideration pregnancies resulting from rape or incest.

“It (abortion) can impact the patients, the medical community and the providers,” she said, adding it was especially concerning that the persons making decisions under the law are “non-medical” prosecutors.

Michigan Chief Medical Executive Natasha Bagdasarian told an Oakland County Circuit judge on Wednesday that “Abortion is a public health issue. The old law doesn’t take into consideration pregnancies resulting from rape or incest."

Kallman declined to cross-examine Bagdasarian.

Whitmer has argued there is a constitutional right to abortion in Michigan's constitution that nullifies the 1931 abortion ban, which has laid largely dormant while the U.S. Supreme Court decision in Roe v. Wade was intact over the past 50 years. 

Cunningham's order came after a Michigan Court of Appeals panel on Tuesday ruled Whitmer would not be forced to testify during the preliminary injunction hearing. The panel upheld last week's lower court ruling by Cunningham, who ruled Whitmer had shown good cause why she shouldn't be made to testify. 

Kallman  subpoenaed the governor for Wednesday's hearing on the argument that she should have to explain how she would be expressly harmed by the state's abortion ban. 

Whitmer's case was filed on the same April day that Planned Parenthood of Michigan filed a separate lawsuit in the state Court of Claims against Attorney General Dana Nessel, also arguing there was a constitutional right to abortion that trumped state law. 

Court of Claims Judge Elizabeth Gleicher ruled in May that Planned Parenthood was likely to succeed in its case and issued a preliminary injunction that she asked Nessel to convey to county prosecutors. 

But a state Court of Appeals panel earlier this month said neither Nessel nor the Court of Claims had authority over county prosecutors, exempting them from the block to the state's abortion ban. 

Later that day, Cunningham issued a temporary restraining order stopping the 13 prosecutors listed as defendants in Whitmer's case from enforcing the abortion ban. The future of that block to county prosecutors depends on Cunningham's decision stemming from Wednesday and Thursday's arguments. 

Medical experts are expected to resume testimony at 9:30 a.m. Thursday.