After the right-wing U.S. Supreme Court overturned Roe v. Wade on Friday, ending the constitutional right to an abortion that has existed in the nation for nearly 50 years, abortion legality now falls to each individual state. In Michigan, there is a 91-year-old law enacted in 1931 that criminalizes abortion with no exceptions for rape or incest, but Whitmer and Nessel say its enforcement is on hold after a Court of Claims judge granted an injunction in a lawsuit filed by Planned Parenthood to block the abortion ban.
Republican county prosecutors in Kent and Jackson counties, however, argue the injunction pertains solely to the state attorney general’s office and not county prosecutors and said they would consider criminal charges against abortion providers if police brought them investigations, according to an attorney representing the prosecutors.
“They’re not out looking for cases, but if a police agency brought a report or investigation to them that a doctor performed an abortion and violated the law, a prosecutor could prosecute them,” said David Kallman, an attorney who represents Kent County Prosecutor Chris Becker and Jackson County Prosecutor Jerard Jarzynka.
Kallman, who endorsed former Republican House Speaker Tom Leonard’s bid for state attorney general before the Michigan GOP endorsed Matthew DePerno to run against Nessel, has litigated past cases against COVID-19 health measures and gender identity protections. He represented Owosso barber Karl Manke, who defied Whitmer’s stay-home orders and opened his shop at the beginning of the COVID-19 pandemic. Kallman also sued the Williamston School District for adopting a nondiscrimination policy related to transgender students, as well as Planet Fitness for allowing transgender women to use the women’s locker room.
Macomb County Prosecutor Peter Lucido, who faced numerous allegations of sexual harassment while serving as a Republican in the state Senate, also said he would uphold an abortion ban “if it’s on the books.”
“I took an oath of office to uphold the law, the constitution of this state and the Constitution of the United States,” Lucido told the Detroit Free Press prior to Roe v. Wade being overturned.
In 2020, a Senate Business Office investigation into Lucido found that the GOP lawmaker engaged in “inappropriate workplace behavior” during his time as a state senator that “demonstrates an unfortunate pattern of behavior” after three women made their allegations public. A fourth woman later came forward in March 2021. Lucido denied those allegations. Earlier this year, Macomb County hired a law firm to investigate “complaints alleging unlawful discrimination and/or harassment” about Lucido.
Lucido under investigation for alleged sexual harassment at Macomb Co. office
As for abortion, police have not yet brought forward any cases to the prosecutors, and a Michigan State Police spokesperson said they are not currently enforcing the 1931 law.
“Our members have been advised to take any complaints they receive and document them, but to conduct no further investigation,” Michigan State Police spokesperson Shanon Banner wrote in an email.
Becker said in a prepared statement issued Monday that he does not “believe it proper for me to simply ignore a law/any law that was passed by the Michigan Legislature and signed by the Governor.”
The Kent County prosecutor went on to say that the 1931 law “does not allow for charges to be filed against the woman seeking or getting an abortion” but “only allows for charges to be filed against a doctor performing an abortion.”
Jackson County Prosecutor Jerry Jarzynka told the Advance on Tuesday that because none of the state’s 83 county prosecutors were involved in the Planned Parenthood case for which the Court of Claims judge issued the injunction that his office still needs to enforce the 1931 law.
“There is a statute on the books that basically prohibits abortion except for the life of the mother,” Jarzynka said, referring to the provision in the law that states an abortion can take place if the pregnant person’s life is in danger. “That’s the law right now, and as a prosecutor I’m going to follow the law.
“Basically, if the police or law enforcement agency brings me a case. … I will look at it as I will any other criminal violation that’s alleged,” Jarzynka continued. “As a prosecutor, I can’t ignore the law.”
Nessel and Whitmer, both Democrats, said the Republican prosecutors’ claims are wrong and have issued repeated statements following the end of Roe that health care workers providing abortion care cannot be prosecuted.
“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 in a prepared statement. “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.”
Phenicie said “any prosecutors who disregard” the injunction “could face contempt proceedings.”
On May 17, Court of Claims Judge Elizabeth Gleicher issued a preliminary injunction in Planned Parenthood of Michigan v. Attorney General of the State of Michigan.
Nessel said the injunction bars her office and all 83 county prosecutors from enforcing the 1931 law. Gleicher could not be reached for comment.
Gleicher determined that without an injunction, plaintiffs and their patients “face a serious danger of irreparable harm if prevented from accessing abortion services.”
The case is moving forward, and Gleicher ultimately will decide whether or not to enter a permanent injunction if she finds the 1931 statute unconstitutional.
Other county prosecutors have said they will follow the injunction and not enforce the 1931 law, including Oakland County Prosecutor Karen McDonald, a Democrat.
McDonald said in a prepared statement issued Friday that her office “will not use its limited resources to prosecute any woman or health care provider for a safe medical decision affecting their body.
“Instead, we will dedicate our limited resources for the prosecution of serious crimes, like gun violence, and the pursuit of justice for all,” McDonald continued.
Wayne County Prosecutor Kym Worthy, who also is a Democrat, did not respond to a request for comment, but she has previously said that her office will not enforce the 1931 abortion ban.
There’s another lawsuit that could impact abortion access in Michigan.
Whitmer has filed a lawsuit asking the state Supreme Court to strike down the 1931 law. Whitmer on Friday filed a motion urging the state Supreme Court to immediately consider her lawsuit. On Monday, she sent a notice to the Supreme Court again asking justices to take up her suit to avoid further confusion around the 1931 law.
“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 in a prepared statement. “But in the wake of the decision … overturning Roe, certain county prosecutors and health providers have expressed confusion about the current legal status of abortion in Michigan.”
Whitmer noted in her court filing Monday that confusion around the 1931 law has resulted in health officials issuing mixed messages about abortion, including at the state’s largest health health system, BHSH System. The system is a merger of the Grand Rapids-based Spectrum Health and Beaumont Health, which serves Southeast Michigan.
On Friday, BHSH System said it would follow the 1931 law. Hours later, BHSH System President and CEO Tina Freese Decker said her organization would continue to provide abortions when a pregnant person’s life was at risk. On Saturday night, the health system officially announced it would reinstate its previous policy of terminating pregnancies “when medically necessary.”
“At present, the current legal landscape regarding abortion in our state is unclear and uncertain,” BHSH said in a prepared statement. “We are aware of the 1931 Michigan law. However, given the uncertainties and confusion surrounding its enforcement, until there is clarity, we will continue our practice of providing abortions when medically necessary.”
BHSH said “we have not and will not perform elective abortions.”
Other health care facilities said the end of Roe v. Wade would not affect its care.
“The reversal of the Roe v Wade decision will not impact any patient care at Sparrow Health System at this time,” Sparrow Hospital said in a statement provided to the Advance on Tuesday. “Safe access to care for all mothers-to-be continues to be available at all Sparrow Health System locations.”
While the status of abortion rights in Michigan following Friday’s SCOTUS decision may be causing confusion at some health facilities, Phenicie said that was far from the case at Planned Parenthood. In fact, she noted a surge of people have reached out to Planned Parenthood of Michigan in the wake of Roe v. Wade being overturned.
“When the Supreme Court case was announced on Friday, our patient call center volume doubled,” Phenicie said. “Over the weekend, we’ve seen a 50% increase in requests for abortion appointments over the prior week.”
While she could not confirm this was definitely the case, Phenicie said she expects that increase in appointments is for individuals living in states where abortion is now outlawed.
On Monday, physicians from across Michigan called for abortion to remain legal in Michigan. Dr. Rob Davidson, an emergency physician in West Michigan and the executive director of the Committee to Protect Health Care, urged voters to back the Reproductive Freedom For All ballot initiative.
Michiganders may be able to vote on a reproductive rights ballot initiative in the November election. The proposal would enshrine the right to abortion in the Michigan state Constitution. The groups behind the proposal — the ACLU of Michigan, Planned Parenthood of Michigan and Michigan Voices — are currently working to secure the necessary signatures for the proposal to be on the ballot. The proposal would also amend the Constitution to include people’s right to birth control, miscarriage care and prenatal care.
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