An Oakland County Circuit Court judge on Friday granted a preliminary injunction that temporarily bars county prosecutors from enforcing Michigan’s 1931 abortion ban post Roe.
After hearing two days’ worth of arguments for and against the preliminary injunction, Oakland County Judge Jacob Cunningham said Friday that the plaintiffs proved that the state’s nearly century-old abortion ban is dangerous and presents a constitutional crisis. Cunningham said everyone in Michigan, “individually and collectively,” is harmed by the existing 1931 law and would be harmed if he did not grant a preliminary injunction.
During the evidentiary hearing, plaintiffs and their witnesses noted that approximately two million Michiganders are of childbearing age.
“It is clear to the court that only one group is harmed by this statute: women and people capable of carrying a child,” Cunningham said.
The testimonies of two witnesses brought by the defense on Thursday were ultimately dismissed by the judge, who claimed their credibility was compromised and their testimonies and work showed significant bias. The defendants, Cunningham said, have “no harm, zero” if the 1931 law banning abortion is on hold.
The injunction granted Friday preserves the status quo that people have experienced since Roe v. Wade protected the right to an abortion in 1973, Cunningham said.
“A person caring for a child has the right to bodily autonomy ... as they have for 50 years,” Cunningham said Friday.
You can watch Cunningham’s complete ruling in the video player at the bottom of this article.
#BREAKING: Judge grants preliminary injunction. and sets pre-trial at Nov 21. Essentially deferring to the ballot initiative in the general election.— Grant Hermes (@GrantHermes) August 19, 2022
The judge granted a motion for a temporary restraining order brought by Michigan Gov. Gretchen Whitmer on Aug. 1, which temporarily prevented county prosecutors from enforcing the state’s 1931 law that bans most abortions. That ruling came nearly immediately after the Michigan Court of Appeals ruled that county prosecutors are allowed to prosecute the law banning abortions, despite yet an earlier court ruling barring them from doing so.
In his Aug. 1 decision, Cunningham agreed that a temporary restraining order was necessary, as the constitutionality of the state’s 1931 law is being questioned in other lawsuits. The latest preliminary injunction is a temporary decision, but still blocks county prosecutors in the state from prosecuting abortion care providers and those receiving abortion care.
As of Friday, Aug. 19, abortion care is not punishable by law in Michigan.
In response to the judge’s decision Friday, Whitmer said she is grateful for the ruling which will “protect women” and allow nurses and doctors to “keep caring for their patients without fear of prosecution.”
“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. Once, over the course of a single day, abortion was legal in the morning, illegal around lunch time, and legal in the evening. We cannot have this kind of whiplash about something as fundamental as a woman’s right to control her own body,” Whitmer wrote, in part, Friday. “Michigan women are understandably scared and angry, and they deserve better than being treated as second class citizens.”
Defendants are expected to appeal. Judge Cunningham scheduled a pre-trial for Nov. 21.
The many lawsuits seeking to uphold or strike down the state’s nearly century-old abortion ban have caused some serious confusion. Let’s break it down as best we can without a law degree.
Michigan’s abortion ban
Michigan has a law on the books from 1931 that makes most abortion care illegal in the state. The law is actually an updated version of a law from the 1800s.
This abortion ban was superseded by the U.S. Supreme Court 1973 decision in Roe v. Wade, which protected a person’s right to an abortion without excessive government overreach. This ruling was overturned in June, however, effectively leaving abortion regulation -- and the decision to ban abortion altogether -- up to individual states.
In Michigan, that meant the state’s 1931 law would take effect once again, making abortion care a felony. The law does allow abortions when it is “necessary to preserve the life” of the mother, but many health experts argue that language is old and vague, and fails to include a number of dangerous and unwanted circumstances that would warrant an abortion.
A number of lawsuits were filed before and after the Supreme Court’s decision in an effort to keep abortion legal in Michigan. One lawsuit filed before the decision was successful in blocking enforcement of the 1931 law, albeit temporarily.
Court of Claims judge blocks ban’s enforcement
In anticipation of the Supreme Court overturning Roe, Planned Parenthood of Michigan and the American Civil Liberties Union filed a lawsuit seeking to prevent the state attorney general from enforcing Michigan’s abortion ban, claiming the 1931 law is unconstitutional. A Michigan Court of Claims judge ruled in favor of PP and the ACLU on May 17, granting a preliminary injunction that temporarily blocked the abortion ban from being enforced until a permanent order was issued.
In her May opinion, Judge Elizabeth Gleicher said that the right to bodily integrity as outlined in the Michigan Constitution makes a ban on abortions unconstitutional.
“Pregnancy and childbirth, particularly if unwanted, transform a woman’s psychological well-being in addition to her body,” Gleicher’s opinion reads. “As recognized in People v. Nixon half a century ago, legal abortion is actually safer than childbirth. Thus, the link between the right to bodily integrity and the decision whether to bear a child is an obvious one.
The Republican-led Michigan Legislature -- which has blocked moves to overturn the state’s abortion ban throughout the years -- intervened in the lawsuit in an effort to uphold the decades-old law. The intervening defendants have since appealed and challenged Gleicher’s decision in a number of ways.
Michigan Attorney General Dana Nessel is also named as a defendant in this lawsuit, but she has said she won’t enforce Michigan’s abortion ban, so she has not appealed Gleicher’s preliminary injunction herself.
The intervening defendants initially filed a motion in June asking the Court of Claims to reconsider the imposed preliminary injunction, but that request was denied. On July 6, the defendants filed for an application for leave to appeal with the Michigan Court of Appeals, a higher court, in hopes of appealing Judge Gleicher’s ruling.
Republican lawmakers also filed a motion requesting Judge Gleicher disqualify herself from hearing the case, claiming she is unable to remain impartial. Gleicher denied the request for several reasons.
The Michigan Court of Appeals then got involved, ruling that Gleicher’s preliminary injunction was not applicable to individual county prosecutors. Gleicher’s ruling is still actively applicable to the state attorney general, meaning the acting attorney general cannot currently enforce the 1931 law.
Court rules county prosecutors can prosecute
The Michigan Court of Appeals ruled on Aug. 1 that while Judge Gleicher’s preliminary injunction applies to state AG Dana Nessel, it does not apply to the county prosecutors in the state. Therefore, the state’s 83 county prosecutors are allowed to enforce Michigan’s 1931 law that bans abortions, the court said.
Jackson County Prosecutor Jerard Jarzynka and Kent County Prosecutor Chris Becker asked the state Court of Appeals to take over the case from Judge Gleicher with the Court of Claims, and that request was denied. The judge did, however, rule in favor of the county prosecutors, citing that they do not operate under direct supervision of the state AG and are not subject to the same restrictions.
“In light of the four-part inquiry from Manuel, we conclude that, under the totality of the circumstances, the core nature of a county prosecutor is that of a local, not a state official. Because county prosecutors are local officials, jurisdiction of the Court of Claims does not extend to them,” the court said in the order. “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.”
Shortly after the appellate court’s ruling, Gov. Whitmer filed a motion for a temporary restraining order against county prosecutors in an effort to block them from enforcing the abortion ban.
Temporary restraining order granted against county prosecutors
An Oakland County Circuit Court Judge granted a temporary restraining order against county several prosecutors in Michigan also on Aug. 1. The request was submitted by Gov. Whitmer in response to the Court of Appeals’ decision.
Oakland County Judge Jacob Cunningham ruled that a temporary restraining order is “necessary to preserve the last actual, peaceable, uncontested status quo pending further order from the Court,” and that that status quo was that “abortion was legal in Michigan under the framework provided” in Roe.
The restraining order temporarily prevented county prosecutors from enforcing the 1931 abortion ban. Though abortion is currently legal, the Court of Appeals decision caused even more legal uncertainty for health care providers -- many of whom paused their abortion care amid the confusion.
The circuit court’s Aug. 1 decision was addressed and upheld during another hearing on Aug. 3.
Judge Cunningham heard arguments and witness testimony on Aug. 17 and Aug. 18. Prior to the Aug. 17 hearing, the judge extended the temporary restraining order to last until the court made a decision this week.
The judge granted a preliminary injunction Friday morning, but it’s important to note that this is not a final ruling. County prosecutors are temporarily not allowed to enforce the 1931 abortion ban. The issue must move further through the court, and a judge must issue a final decision.
Judge Cunningham set a pre-trial date for Nov. 21, which falls within the 6-month timeframe required to begin the trial once the preliminary injunction is issued. However, a ballot proposal could impact the validity of this injunction and this case in general, should it appear on the ballot in November.
Ballot proposal in Michigan
A group named Reproductive Freedom for All in July submitted more than 700,000 signatures in favor of placing the issue of abortion access on the November ballot in Michigan, giving voters the chance to decide. In order to qualify for the ballot, the proposal needed to acquire at least 425,059 signatures.
The proposal seeks to amend the Michigan Constitution to affirm that “every person has the fundamental right to reproductive freedom, which involves the right to make and carry out decisions without political interference about all matters relating to pregnancy, including birth control, abortion, prenatal care, and childbirth.”
If abortion care became legal under the Michigan Constitution by amending the existing law, this change would supersede prior court rulings.
The Michigan Board of State Canvassers will meet at the end of August to determine if the ballot proposal has qualified to appear on the ballot in the fall. Currently, the initiative is being challenged by anti-abortion groups, who allege there are 60 errors in the proposal.
Another lawsuit in the works
Gov. Whitmer also has another lawsuit seeking to strike down the 1931 law altogether, declaring it is unconstitutional. She has asked the Michigan Supreme Court to hear this case directly, and has called on the higher court several times to settle this matter for the state, rather than have it move through the legal system as it is now.
The state supreme court has not said whether it will hear the case.