Michigan court rules county prosecutors can enforce state’s 1931 abortion ban

Injunction still applies to attorney general’s office

The Michigan Court of Appeals made a ruling that will allow the state’s 83 county prosecutors to begin enforcing the 1931 ban on abortions.

The order was issued Monday. Michigan Attorney General Dana Nessel said that Democrat prosecuting attorneys have already committed to refusing to enforce the ban and the injunction still applies to the attorney general’s office.

Update: Oakland County judge blocks enforcement of abortion ban in Michigan

The United States Supreme Court voted to overturn the 1973 Roe v. Wade ruling that made abortion legal nationwide. The ruling came down on June 24. For nearly 50 years the right to have an abortion without excessive government restrictions was protected.

Michigan’s 1931 abortion ban states that all abortions are felonious and cannot be carried out unless necessary to “preserve” the life of the mother. There are no exceptions for rape or incest.

In May, a Michigan Court of Claims judge granted a motion filed by Planned Parenthood and the ACLU that prevented Michigan’s attorney general from enforcing the 1931 ban. Nessel has repeatedly said she will not enforce the ban, even if it’s re-enacted by the courts.

Michigan Judge Elizabeth Gleicher sided with the two groups and granted the motion preventing “all local officials acting under (their) supervision,” from enforcing Michigan’s 1931 law.

“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.

Read more: Michigan court blocks enforcement of state’s 1931 abortion ban if Roe is overturned

Jackson County Prosecutor Jerard Jarzynka and Kent County Prosecutor Chris Becker asked the Court of Appeals to take over the case from Gleicher and that request was denied. A win for them, as the court determined that the injunction “does not apply to county prosecutors.”

“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.”

Planned Parenthood of Michigan released a statement shortly after the order was released:

“The injunction barring enforcement of Michigan’s 1931 criminal abortion ban remains in effect and applies to all Michigan county prosecutors. Under Michigan court rule MCR 7.215(F)(1)(a), “the Court of Appeals judgment is effective after the expiration of the time for filing an application for leave to appeal to the Supreme Court, or, if such an application is filed, after the disposition of the case by the Supreme Court.” This means that the Michigan Court of Appeals ruling cannot take effect during the 21 day appeal window.

“Planned Parenthood of Michigan will continue to evaluate our legal options and remains committed to protecting abortion access in Michigan.

Planned Parenthood of Michigan will continue to provide abortion services in accordance with the law. PPMI patients can keep their appointments and our doors remain open.”

A spokesperson for Michigan Gov. Gretchen Whitmer released the following statement:

“We are reviewing the Court of Appeals decision.

“As we look at next steps, Michiganders should know that Governor Whitmer will continue to fight like to hell to protect a woman’s ability to make her own medical decisions with her trusted health care provider. With politicians in Michigan and across the country pushing dangerous abortion bans, even in instances of rape or incest, Governor Whitmer will do everything in her power to ensure that no one will be prosecuted or jailed for seeking or providing abortion care in our state.

“Earlier this year, Governor Whitmer took executive action asking the Michigan Supreme Court to resolve whether the state constitution protects the right to abortion. The Michigan Supreme Court could take up the governor’s lawsuit at any time, and they should do so immediately to provide clarity for Michiganders that their right to abortion remains unchanged.”

Legislative director Right to Life of Michigan Genevieve Marnon released the following statement:

“We were disappointed that the Court of Appeals dismissed our request to take the case away from Judge Gleicher. But we are thrilled that her injunction does not apply to the county prosecutors as we thought. If I were an abortion provider in Macomb, Jackson, or Kent county I would seriously consider closing my doors today.”

Michigan Attorney General Dana Nessel released the following statement:

“Today’s ruling will not deter my efforts to continue to fight for Michigan women. The legal battle continues on multiple fronts and those of us who value access to reproductive healthcare and respect a women’s right to make the best decisions for herself, according to her own moral, cultural and religious beliefs are not backing down. While I respect the ruling from the court, it is by no means the final say on this issue in Michigan.”

View the order from the Court of Appeals

About the Authors:

Kayla is a Web Producer for ClickOnDetroit. Before she joined the team in 2018 she worked at WILX in Lansing as a digital producer.

Priya joined WDIV-Local 4 in 2013 as a reporter and fill-in anchor. Education: B.A. in Communications/Post Grad in Advanced Journalism