GRAND RAPIDS, Mich. (WOOD) — An Oakland County judge on Wednesday ruled to continue a temporary restraining order preventing county prosecutors from pursuing cases under Michigan’s 1931 abortion ban.
“Obviously, I’ll abide by this one because this one has … some legal basis of what is occurring versus what happened through the Court of Claims, which is why we fought that one specifically,” Kent County Prosecutor Chris Becker told News 8.
Gov. Gretchen Whitmer was granted the TRO by an Oakland County judge after the state Court of Appeals ruled that county prosecutors like Becker were not bound an injunction halting enforcement of the abortion ban.
“Still a hard problem trying to figure out why Oakland County is the epicenter of all these decisions now. Because the governor filed one lawsuit there and now found another judge there to issue this injunction…” Becker said. “I’m upset about the process of what the governor and the attorney general have done in terms or running to the favorable courts and seeking judges that are favorable to them. I’m all for the legal process and I’ll follow a validly issued injunction. I’m not trying to be a rogue prosecutor.”
In Wednesday’s hearing, Michigan Assistant Attorney General Linus Banghart-Linn argued that the “balance of harms is so lopsided.” He said not allowing the restraining order to continue would cause “chaos” and a “state of confusion.”
Banghart-Linn argued that county prosecutors have not been able to enforce the law for the past 50 years, so there will be no harm if they cannot enforce the law before voters make a decision on an abortion rights ballot initiative in November or before the state Supreme Court makes a ruling. On the other side, he said women who need abortions now will be harmed if the restraining order is rescinded.
“Abortion is inherently a time-sensitive thing,” he said.
Opposing council David Kallman, who represents Becker, said the restraining order should be ended “immediately,” arguing it should never have been issued to begin with. He questioned the way it was requested. He said the governor’s attorneys failed to show immediate harm the applicant would see without the order.
He pointed out that the applicant is not the women of Michigan, but rather the governor of Michigan.
“How is she harmed as the governor of Michigan and so needs this TOR?” Kallman said. “I think we can all stop right there.”
Kallman also argued the TRO was based on a constitutional right that does not exist.
“We have no constitutional right that they’re basing this on. What they’re asking you to do is, ‘Because we filed a complaint and we’re trying to change the law and we’re trying to add a new constitutional right to the law, give us a TRO now before anybody has even decided the issue,'” Kallman said. “Frankly it’s been granted on the basis of a non-existent constitutional right.”
Attorneys speaking on behalf of multiple prosecutors, including Kalamazoo County Prosecutor Jeff Getting, spoke in support of keeping the restraining order. Oakland County Prosecutor Karen McDonald also spoke at the hearing.
“I’m concerned about my 12-year-old rape victim that won’t know whether or not she can go to a medical professional and end that pregnancy because it was a result of rape,” she said. “I’m concerned about women who are confused and the chaos that’s going to cause. It’s not mere confusion, it’s affecting a very vulnerable population and women everywhere.”
The Michigan Court of Claims in May ordered Michigan Attorney General Dana Nessel to not enforce the ban, along with anyone she supervises, back in May. Becker, the Kent County prosecutor, and Jackson County Prosecutor Jerard Jarzynka argued they were not supervised by the AG’s office, so the injunction did not cover them.
“The attorney general does not have control over any prosecutor in the state, so that was a completely bogus decision,” Becker said.
The Michigan Court of Appeals agreed with the prosecutors in a Monday ruling.
The same day, Whitmer’s attorneys filed for the TRO and it was granted. The motion for the order noted that the Court of Appeals decision did not comment on the constitutionality of the abortion ban, which Whitmer and Planned Parenthood of Michigan have challenged.
Becker argued Michigan courts have already ruled on the constitutionality of abortion.
“The Mahaffey decision back in 1997 basically said there is no right to abortion in the Michigan Constitution separate from the U.S. Constitution,” he said. “So now we have a judge who says I’m just going to ignore that at the circuit court level. And last time I checked, the Court of Appeals is over the circuit court.”
There will be a hearing on whether the restraining order will become a preliminary injunction in two weeks.
— News 8’s Meghan Bunchman and Rachel Van Gilder contributed to this report.