Michigan AG: Abortion care ‘cannot be prosecuted’ while injunction in place

Preliminary injunction currently blocking Michigan’s 1931 law banning most abortions

FILE - Protesters fill the street in front of the Supreme Court after the court's decision to overturn Roe v. Wade in Washington, June 24, 2022. (AP Photo/Jacquelyn Martin) (Jacquelyn Martin, Copyright 2022 The Associated Press. All rights reserved.)

LANSING, Mich. – With confusion and uncertainty over abortion laws and abortion care circulating throughout the state, Michigan Attorney General Dana Nessel is reminding residents and health care providers that abortion is currently legal in the state.

The 1973 Supreme Court ruling in Roe v. Wade that protected the right to abortions nationwide has been overturned, leaving state governments to regulate abortions, or ban them altogether, in their individual jurisdictions. In Michigan, a 1931 law remains on the books that bans most abortions in the state.

That nearly-century-old Michigan law is technically in effect, since the Supreme Court ruling superseding it has been overturned. However, Michigan Court of Claims Judge Elizabeth Gleicher issued an injunction in May that blocks the law from being enforced.

So, as of Monday, June 27, abortion is legal in Michigan and the state’s 1931 abortion ban cannot be enforced.

“As it currently stands, providing abortion care in Michigan cannot be prosecuted, and I encourage those with appointments to move forward as scheduled and consult with their doctors,” Nessel said Monday. “Despite the Supreme Court’s ruling last week, I remain committed to ensuring a woman’s right to choose and will continue to fight against every attempt to limit access to care. This includes ensuring Michiganders are properly informed regarding the current state court battle that is far from over.”

Judge Gleicher ruled in favor of a lawsuit filed by Planned Parenthood of Michigan and the American Civil Liberties Union that claims that the 1931 abortion ban -- which is an updated version of a law from the 1800s -- violates the Michigan Constitution. In her May opinion, Gleicher said that the right to bodily integrity as outlined in the state’s constitution makes a ban on abortions unconstitutional.

It is important to note, however, that Judge Gleicher issued a preliminary injunction -- meaning that the 1931 law is only temporarily blocked in Michigan.

The Republican-controlled Michigan Legislature has joined the lawsuit as defendants in hopes of upholding the 1931 law and ensuring abortions are illegal in the state. Legislators are currently challenging the preliminary injunction.

Nessel said Monday that the parties involved in the lawsuit are now moving into the merits phase of the case, meaning “motions for summary disposition will be filed and heard, after which Judge Gleicher will render a final determination on plaintiffs’ claims and enter a permanent injunction if she finds the statute unconstitutional,” a press release reads.

The state AG also noted that “no specific briefing schedule has been set” as of Monday afternoon.

More: Supreme Court overturns Roe v Wade: What that means for abortion access in Michigan

Nessel’s message comes as residents, health care providers and county prosecutors expressed confusion over the injunction and how it applies to them. According to the Michigan AG, abortion care can carry on as normal in the state while the injunction is in place.

Michigan Gov. Gretchen Whitmer also took action Monday, concerned about the confusion that legal battles have caused for Michiganders regarding abortion rights and regulation. The governor on Monday sent a request to the state supreme court to “immediately consider her lawsuit to decide if Michigan’s state constitution protects the right to abortion,” a press release reads.

Similarly to PP and the ACLU, Gov. Whitmer filed a lawsuit in Michigan ahead of the Roe decision in hopes of overturning the 1931 law banning abortion. Whitmer and Democratic lawmakers before her have attempted to repeal the law in previous years, but have consistently been blocked by the GOP-led legislature.

Whitmer has requested that the Michigan Supreme Court hear her case directly. Michigan justices have not yet said whether they will hear the case.

“Right now, abortion remains safe and legal in Michigan because of a court order temporarily blocking enforcement of the state’s 1931 abortion ban,” Whitmer said. “But in the wake of the decision in Dobbs overturning Roe, certain county prosecutors and health providers have expressed confusion about the current legal status of abortion in Michigan. This only underscores the need for the Michigan Supreme Court to act now, which is why I sent a notice to the court urging them to immediately take up my lawsuit and decide if access to abortion is protected under the Michigan Constitution. Getting this done will put an end to any confusion and ensure that Michiganders, health providers, and prosecutors understand the law.”

Nearly half of the U.S. has already banned or intends to ban abortion completely following the overturning of Roe.

Related: Roe ruling shows complex relationship between court, public

About the Author:

Cassidy Johncox is a senior digital news editor covering stories across the spectrum, with a special focus on politics and community issues.