Judge blocks prosecutors from enforcing Michigan’s ‘chilling and dangerous’ abortion ban

An Oakland County judge has ruled that an injunction on the state’s abortion ban will remain in effect, preventing local prosecutors from enforcing a 1931 law which prohibits doctors in Michigan from performing any abortions except to save the life of the “pregnant woman.”

Circuit Court Judge Jacob Cunningham issued the ruling Friday after two days of oral arguments, saying that while “injunctive relief is an extraordinary remedy… as currently applied, the court finds [the 1931 abortion law] is chilling and dangerous to our state’s population of childbearing people and the medical professionals who care for them.”

“A person carrying a child has a right to bodily autonomy and integrity, as well as a safe doctor-patient relationship as they have been able to do so for the past 50 years,” Cunningham said. “Weaponizing the criminal law against providers to force pregnancy on our state’s women is simply contrary to the notion of due process, equal protection, and bodily autonomy in this court’s eyes.”

Macomb County Prosecutor Pete Lucido | Ken Coleman

Republican prosecutors in Macomb, Jackson and Kent counties had sought to enforce the law.

“There is precisely zero harm to the defendants by granting a preliminary injunction,” he said.

“The court suggests county prosecutors focus their attention and resources … to investigation and prosecution of criminal sexual conduct, homicide, arson, child and elder abuse, animal cruelty and other violent and horrific crimes that we see in our society,” Cunningham added.

Cunningham also noted that a reproductive rights constitutional amendment was likely to appear on the ballot in November, which would invalidate the 1931 law. He also said the 91-year-old law raised broad questions of equal protection and bodily autonomy.

“The court briefly questions, for purposes of example only, what would the argument surrounding an equal protection, liberty, bodily autonomy and bodily integrity argument that would be presented should mandatory vasectomy be at issue today in lieu of child gestation and birth,” he said. “What if men were required to be unable, by statute and threat of criminality to seed children until they could satisfy to their medical professional they were capable to assist the raising and nurturing the education of a child?”

He also said that the witnesses who testified on behalf of the state, Dr. Lisa Harris, an obstetrician-gynecologist and associate director of Obstetrics and Gynecology at University of Michigan Michigan Medicine, Dr. Natasha Bagdasarian, the state’s chief medical officer, and Dr. Diana Nordlund, were “extremely credible in their testimony,” in detailing the great risk of harm that would be created for women if the injunction were lifted.

Bagdasarian testified Wednesday that the 1931 abortion ban could worsen Michigan’s public health outcomes, widen disparities for populations across the state, especially for Black women, and impact victims of rape and incest.

“Every year, 12 to 15 women die each year due to pregnancy-related causes in Michigan,” Bagdasarian said. “By subjecting women to carry pregnancies in a forced manner, we are subjecting them to potentially negative health outcomes if they are not choosing it themselves.”

As to the witnesses for the defense, Priscilla Coleman, a researcher on the mental health impacts of abortion on women, and Dr. Gianina Cazan-London, an OB-GYN at McLaren Health Hospital System, Cunningham questioned their medical expertise, saying Coleman’s “credibility was seriously called into question and her statistics and conclusions of her testimony revealed unhelpful and biased information.”

As to Cazan-London, the judge said she had been “significantly discredited in the court’s mind regarding a personal bias in this area,” for her “inability… to acknowledge from the court’s perspective, the impact of rape and a subsequent pregnancy on a victim.”

Gov. Gretchen Whitmer at the Mackinac Policy Conference, June 1, 2022 | Laina G. Stebbins

The ruling was hailed by Democratic Gov. Gretchen Whitmer, who had sought the injunction.

“I am grateful for this ruling that will protect women and ensure nurses and doctors can keep caring for their patients without fear of prosecution,” said Whitmer. “I am particularly grateful to Attorney General Dana Nessel and her team for their work on behalf of the state. 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. Michigan women are understandably scared and angry, and they deserve better than being treated as second class citizens.”

Nessel, a Democrat, also touted the decision.

“Abortion is critical healthcare,” she said. “Uncertainty around the law has a chilling effect on the conduct of doctors and therefore limits access to care for Michigan women. Maintaining access to reproductive healthcare is absolutely necessary for the health and well-being of women and it is our duty to ensure that access for the roughly two million women of reproductive age who call Michigan home. Absent this preliminary injunction, physicians face a very real threat of prosecution depending on where they practice. There is no doubt that the statue criminalizing abortion is in direct conflict with the ability of the medical community to provide the standard of care consistent with their education, training, expertise and oath.”

Right to Life of Michigan slammed Whitmer after the decision came out.

“Not very surprising. Governor Whitmer is bringing this case because they have never had the votes to change Michigan’s abortion law, and doubt they will have the votes in November to add abortion into our constitution. She doesn’t really believe in democracy,” the group tweeted.

The decision follows a flurry of court activity on abortion in Michigan in recent months.

When the U.S. Supreme Court overturned Roe v. Wade in June, abortion access in Michigan was protected by an injunction placed on the state’s 1931 abortion ban in May by Court of Claims Judge Elizabeth Gleicher.

Cases before both the Michigan Court of Appeals and Michigan Supreme Court could end up overturning or reinforcing Gleicher’s injunction.

But until those decisions are issued, which could be at any time, several Republican county prosecutors had argued that the injunction prohibits them from doing their job and took the issue to the state Court of Appeals, which ruled earlier this month that county prosecutors are exempt from the injunction.

That same day, however, Whitmer asked the Oakland County Circuit Court to issue a temporary restraining order (TRO) to prevent county-level decisions on abortion access. By evening, Judge Cunningham then granted that request and later ruled to keep the TRO in place.

Washtenaw County Prosecutor Eli Savit was among a group of seven Democratic prosecutors who argued on behalf of the state. Following today’s ruling, Savit told Michigan Advance it was a complete victory for those seeking to protect reproductive freedoms in Michigan.

“The court ruled in our favor on both the major legal arguments that we made in this case, under the Michigan Due Process clause and under the Equal Protection clause,” said Savit. “And he also gave a very good, thorough and detailed ruling about the harms that this would cause to women and pregnant people, as well as doctors and providers, and really the populous of Michigan as a whole. So, you know, it couldn’t have gone any better.”

Savit added that Cunningham’s ruling was the correct interpretation of why the injunction was sought in the first place.

“I think what he was saying is, ‘Look, two things are true,’” he said. “No. 1, this is just preserving the status quo that has existed in this state for a half century and there is no harm to preserving the status quo. Second, that with respect to the ballot initiative, the people are going to have an opportunity to weigh in on this. And so it makes sense to preserve that half century old status quo as the people are considering whether to vote on that amendment.”

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