Abortion could become illegal in parts of Michigan after a state Court of Appeals panel said in a decision released Monday that a judge’s injunction blocking the enforcement of a pre-Roe v. Wade ban doesn’t apply to county prosecutors.
The 91-year-old abortion ban, which had been blocked in May from taking immediate effect, makes it a crime for physicians to perform abortions unless the life of the mother is in danger.
The new ruling will have the largest impact on the 13 prosecutors in the state that have abortion clinics in their county. Seven of those prosecutors — all Democrats — previously said they would not enforce the 1931 law.
Republican prosecutors in Kent and Jackson counties, however, plan to enforce the 1931 abortion ban, meaning abortion providers could get charged with a felony.
“If a report is presented to this office, we will review it like we do any other report of possible criminal behaviour,” Christopher Becker, Kent County’s prosecutor, said in a statement Monday. “We will make the decision to charge, or not to charge, based on the facts presented in the report and the applicable Michigan law.”
Becker, who had previously said in June he would ignore the injunction and enforce the 1931 law, said no reports have been brought to his office to this point. Kent County includes Grand Rapids, the state’s second largest city.
Prosecutor Jerard Jarzynka of Jackson County didn’t immediately respond to a request for comment.
The three-judge panel’s ruling Monday came after Becker, Jarzynka and several anti-abortion groups requested the Court of Appeals overturn a lower-court injunction on the 1931 ban. The court’s ruling Monday said Becker and Jarzynka don’t have standing because the injunction “does not apply to county prosecutors.”
Total or near-total abortion bans are already in effect in the nearby states of Indiana, Ohio and Wisconsin, with bans expected in roughly half the states.
Ruling not ‘final say,’ Michigan AG says
Michigan’s Democratic attorney general, Dana Nessel, who previously said she will not defend the 1931 law, said in a statement Monday the “legal battle continues on multiple fronts” and the ruling is not the “final say on this issue in Michigan.”
Earlier this month, abortion rights activists submitted signatures to bring a constitutional amendment before Michigan voters in November that would affirm the right to make pregnancy-related decisions without interference, including about abortion and reproductive services such as birth control. If the amendment passes, it would supersede the 1931 law.
In his ruling, Judge Stephen L. Borrello stated the court concluded “that on the facts before this court, plaintiffs Jarzynka and Becker are not and could not be bound by the Court of Claims’ May 17, 2022, preliminary injunction because the preliminary injunction does not apply to county prosecutors.”
David A. Kallman, senior legal counsel with the Great Lakes Justice Centre, called Monday’s ruling a “victorious defeat,” because while the case was dismissed by the court, its decision showed the injunction did not apply to county prosecutors.
“So not only are they not bound right now by it, they never could be bound by it,” he said. “They were never bound by it. And that’s been our position from Day 1.
“There have been a lot of other attorneys, and the ACLU [American Civil Liberties Union], and the governor and attorney general all claiming the opposite, that our clients were prohibited and bound by that injunction.
“And that’s simply not true, and the Court of Appeals vindicated our position today. So we’re quite happy with that.”
Only abortion provider may face charges
However, Kallman said, the pregnant person cannot be charged if they have an abortion in Michigan.
“It’s only the doctor or the abortion provider,” he said. “So if I were a doctor or a hospital providing abortion services, if I were them, I would not be doing abortions today unless it’s to save the life of the mother, because otherwise they’re going to be subject to a criminal possible criminal charges, and it’s a felony.
“They have to decide if they’re going to take that risk or not.”
Anyone convicted under the statute, Kallman said, could go to prison, be fined, or lose their medical licence.
Kallman also noted that while the earlier injunction remains in place, it only applies to Michigan Attorney General Dana Nessel.
“Dana Nessel had already stated publicly on numerous occasions she was never going to enforce the abortion statute,” Kallman said. “So it’s an injunction without meaning.
“Technically the injunction is still there, and it still does bar the attorney general from bringing a prosecution, but she won’t anyway.”
In the ruling, Borrello wrote that Michigan law does not give the attorney general “control” over county prosecutors, who still have discretion when exercising their statutory duties.
Kallman said Jarzynka and Becker, who were represented by the centre, are “very pleased” with Monday’s ruling.
In a statement to CBC News on Monday, Planned Parenthood of Michigan (PPMI) said it will continue to provide abortion services in accordance with the law.
“Planned Parenthood of Michigan will continue to evaluate our legal options and remains committed to protecting abortion access in Michigan,” the statement reads. “PPMI patients can keep their appointments and our doors remain open.”