County prosecutors can't enforce Michigan abortion ban, Oakland Co. judge rules

Pontiac — An Oakland County judge ruled Friday that county prosecutors cannot enforce the state's 1931 abortion law as courts consider a Gov. Gretchen Whitmer lawsuit seeking to overturn the ban as unconstitutional, a decision that two GOP county prosecutors plan to appeal.  

Oakland Circuit Judge Jacob Cunningham's preliminary injunction means abortion will likely remain legal in Michigan until Whitmer's case or a lawsuit brought by Planned Parenthood in the Michigan Court of Appeals is fully resolved. 

Cunningham said the harm of allowing prosecutors to criminalize abortions could not be "more real, clear, present and dangerous." The 1931 abortion ban doesn't pass constitutional muster in the state, he said, because weaponizing criminal law against abortion providers goes against due process. 

“A person carrying a child has the right to bodily autonomy and integrity as well as a safe doctor-patient relationship free from government interference, as they have been able to do so for nearly 50 years," Cunningham said, adapting the "bodily integrity" phrase used in Court of Claims Judge Elizabeth Gleicher's May preliminary injunction in a Planned Parenthood lawsuit.

An injunction is "overwhelmingly" in the public interest because it would allow Michigan voters to decide on abortion rights at the ballot box, if a proposal for a constitutional amendment gets approved for the Nov. 8 ballot, the judge said. 

The Reproductive Freedom for All ballot committee's proposed ballot initiative would amend the Michigan Constitution to allow for abortion up to fetal viability, which usually is considered to be around 24 weeks but is defined in the language as when a child can survive outside the womb without "extraordinary medical measures." The proposed language includes a carveout that would allow abortions after fetal viability to protect the physical or mental health of a mother. 

"This is the ultimate example of maintaining the status quo," Cunningham said about his order. "There is precisely zero harm to the defendants by granting a preliminary injunction."

Whitmer welcomed the judge's ruling while noting her team would "remain vigilant in protecting reproductive freedom." 

"I am grateful for this ruling that will protect women and ensure nurses and doctors can keep caring for their patients without fear of prosecution," the Democratic governor said in a Friday statement. "... 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."

Michigan Attorney General Dana Nessel also embraced the judge's ruling, arguing that "restricting access to reproductive health care jeopardizes the ability of physicians to deliver appropriate care and it denies women the right to decide the most intimate issues regarding their health, their bodies and their lives.” 

'Sad day for rule of law'

Attorney David Kallman, who represents Jackson County Prosecutor Jared Jarzynka and Kent County Prosecutor Chris Becker, Republican prosecutors, said he was not surprised by the judge's ruling, but he is disappointed. He plans to appeal the decision to the state Court of Appeals, where a three-judge panel will be chosen by blind draw.

Becker and Jarzynka have said they would consider criminal cases under the 1931 law depending on the evidence presented. "I cannot and will not ignore a validly passed law," Becker said after a three-judge Court of Appeals panel unanimously ruled Gleicher's preliminary injunction didn't apply to county prosecutors. 

By issuing his own preliminary injunction, Cunningham ignored the legal issues he raised during the two-day evidentiary hearing, Kallman said. 

"It's a sad day for rule of law in Michigan," Kallman said. "There is no constitutional right to abortion under Michigan law right now. The judge ignored that." 

Neither Kallman nor anyone representing the defendants in the case attended the Friday hearing. Kallman said since the Friday hearing was not made known until Thursday afternoon, he couldn't attend in person because he had cases scheduled Friday for other clients. But he noted Cunningham said Thursday he could attend the hearing over Zoom. 

Kallman said he has other clients he must attend to, unlike county prosecutors or the Attorney General's office, who have other people who can handle cases for them. 

Deputy Attorney General Christina Grossi said she was surprised Kallman did not attend the hearing. 

"When you suggest that the case is as important as it is to you, you show up when it matters and that includes hearing the outcome of the case," Grossi said. 

Relief about injunction

Washtenaw County Prosecutor Eli Savit and Oakland County Prosecutor Karen McDonald, who are both Democratic prosecutors, attended Friday's hearing and expressed their relief about Cunningham's ruling. 

McDonald said prosecutors can now spend their time prosecuting "real serious crime," such as gun violence, mass shootings, sexual assault and human trafficking.

"I'm relieved that everyone in this state knows it doesn't matter what county you live in now, you are not, as a provider, going to be prosecuted and as a woman and girls (you) have a right at this moment because of this ruling to reproductive freedom," McDonald said. 

Cunningham's ruling came after a two-day evidentiary hearing where attorneys renewed their arguments for and against the temporary ban. This was the first hearing in the country since Roe v. Wade was overturned with live testimony on the impact of allowing the criminalization of abortion. 

The judge heard from five medical professionals — the state’s chief medical officer, an obstetrics and gynecology professor from the University of Michigan and an emergency medical specialist from prosecutors, as well as an OB-GYN and a retired Bowling Green University developmental psychiatrist from the defense  — and lawyers from both sides. 

Cunningham said he did not believe either defense witness was credible and he said he did not use their testimony to make his decision. 

Whitmer has argued Michigan's constitution offers a right to abortion that nullifies the 1931 ban, which has laid largely dormant since the Roe v. Wade ruling in 1973. She filed a lawsuit in April to stop 13 county prosecutors from enforcing the law on abortion providers within their counties. 

The Michigan law bans abortions in all cases except when a pregnant person's life is in jeopardy. 

The same day Whitmer filed her lawsuit, Planned Parenthood of Michigan filed a separate case about the abortion ban in the Michigan Court of Claims against Nessel.

Gleicher ruled in May that Planned Parenthood was likely to succeed in its case and determined that Nessel could not enforce the 1931 ban. 

Gleicher asked Nessel to convey that to county prosecutors, but a Michigan Court of Appeals panel ruled earlier this month that neither Nessel nor the Court of Claims had authority over county prosecutors, which exempted them from Gleicher's block on the abortion ban. 

A lawyer for Right to Life of Michigan and the Michigan Catholic Conference has argued that laws must be upheld until they are changed under the democratic legislative process.

"This is the kind of mess that you end up in the court system when the state’s chief executive and its attorney general refuse to uphold and defend the law that has been in place since 1931," said John Bursch, an Alliance Defending Freedom lawyer representing Right to Life of Michigan and Michigan Catholic Conference.

”

kberg@detroitnews.com