GRAND RAPIDS, Mich. (WOOD) — Capping off a day of quickfire developments on the enforcement of Michigan’s 1931 abortion ban, an Oakland County judge granted a temporary restraining order preventing county prosecutors pursuing abortion cases.
In May, the Michigan Court of Claims ordered the state attorney general and anyone she supervises not to enforce the ban. Kent County Prosecutor Chris Becker and Jackson County Prosecutor Jerard Jarzynka argued they were not supervised by the AG’s office, so the injunction did not cover them. In a ruling released Monday morning, the Michigan Court of Appeals agreed.
The appeals judges decided (PDF) that the county prosecutors were local officials, not state ones, and the Court of Claims therefore did not have jurisdiction over them. They also decided that the prosecutors are not supervised by the AG, so they were not bound by the injunction.
In response on Monday afternoon, Gov. Gretchen Whitmer’s attorneys filed for the temporary restraining order. The motion noted that the Court of Appeals did not rule on the constitutionality of the abortion ban, which Whitmer and Planned Parenthood of Michigan have challenged.
“(The Court of Appeals ruling is) causing a lot of chaos and confusion and fear for women and for providers,” Whitmer told News 8 in a Zoom interview after the motion was filed but before the restraining order was granted.
She said a situation where some county prosecutors have said they will not pursue abortion cases and some said they may was “unstable.” In a statement, she said the chaotic day of back-and-forth legal action was an example of why the Michigan Supreme Court should take up the matter and provide definitive legal clarity.
“I’m also hopeful that our state Supreme Court takes my case up soon because this is the exact concern that I had with that (U.S. Supreme Court) Dobbs ruling (that overturned Roe v. Wade),” Whitmer, a Democrat, told News 8.
Michael McDaniel, a constitutional professor at WMU-Cooley Law School, explained the judge made the ruling on grounds of “potential irreparable injury to either women or doctors, or both, or others, in the state.”
With that in place, there will be a hearing scheduled for Wednesday on whether the temporary restraining order will become a preliminary injunction.
“The question is whether the judge will have any factual hearing in the sense of taking evidence at that point, or will, more likely, only decide the preliminary injunction,” McDaniel said. “That is continuing things as they are, maintaining the status quo until a full hearing.”
McDaniel said Whitmer’s pending lawsuit may eventually determine if abortion is a constitutional right in the state of Michigan.
“(The judge) is going to maintain that status right now because we got this lawsuit already filed. We’ve already got the prosecutors named in this case, as well as the governor’s office. We have all parties here, so that we can make a full decision as to whether or not MCL 750.14.50 — the Michigan Abortion Law of 1931 — whether or not it is truly constitutional or not based on the Michigan Constitution,” McDaniel explained.
BECKER SAID HE WOULD CONSIDER ABORTION CASES
Planned Parenthood of Michigan, which filed the challenge that led to the injunction, disagreed with the Court of Appeals’ ruling.
“As such, we’re continuing to evaluate our legal options,” Planned Parenthood of Michigan President and CEO Paula Thornton Greear said at a brief virtual news conference Monday afternoon. “We believe that the Court of Appeals order is wrong.”
Becker, Jarzynka, Right to Life of Michigan and the Michigan Catholic Conference had asked the Court of Appeals to take over the case from the Court of Claims, but the appeals court declined to do so, saying the plaintiffs did not have standing to make the request.
“We’re calling this a victorious defeat,” David Kallman, senior legal counsel for the Great Lakes Justice Center, who represents Becker and Jarzynka, told News 8 in a Zoom interview before the restraining order was granted. “On the one hand, our complaint got dismissed … but the court agreed with us and said the reason they had no standing to bring the case was because the order does not apply to them.”
Though the main request was denied, Right to Life of Michigan also called the Court of Appeals ruling a win, legislative director Genevieve Marnon said.
“The county prosecutors should never have been injoined in the first place and this is just confirmation of our understanding,” Marnon said. “The Judge (Elizabeth) Gleicher injunction that she placed on the county prosecutor was improper.”
In a statement before the restraining order was granted, Becker, a Republican, said he was prepared to consider abortion cases — though as of Monday, his office had not received any police reports on such cases.
“I cannot and will not ignore a validly passed law,” his statement (PDF) continued. “If a report is presented to this office, we will review it like we do any other report of possible criminal behavior. We will make the decision to charge, or not to charge, based on the facts presented in the report and the applicable Michigan law.”
PLANNED PARENTHOOD: ‘ABORTION IS SAFE AND LEGAL’
The Court of Claims injunction still applies to Attorney General Dana Nessel and her office.
“…But of course, AG Nessel has already said she’s not going to prosecute anybody under the law,” Kallman said.
With the temporary restraining order granted, Nessel said the legal battle over the ban and whether it can be enforced will continue.
“…This temporary restraining order ensures prosecutors cannot target women or providers in the short-term,” she said in a statement. “Women should feel comfortable to move forward with their planned medical procedures and providers in those counties should feel confident to practice medicine free from the threat of prosecution while my department continues to pursue all legal options available to ensure reproductive healthcare in our state.”
Kalamazoo County Prosecutor Jeffrey Getting, along with prosecutors from Genesee, Ingham, Marquette, Oakland, Washtenaw and Wayne counties, said in a joint release they will not “use our offices’ scarce resources to prosecute the exercise of reproductive freedom.”
“Nearly four months ago—when the draft Supreme Court decision in Dobbs was leaked—all of us issued a statement indicating that we ‘cannot and will not support criminalizing reproductive freedom or creating unsafe, untenable situations for health care providers and those who seek abortions in our communities,'” the prosecutors said. “We reaffirm that commitment today. Litigation on this issue will undoubtedly continue. We have supported Governor Whitmer’s litigation efforts to guarantee the right to reproductive freedom. And we will continue to fight, in court, to protect the right to safe and legal abortion in Michigan.”
Michigan’s ban on abortions covers most circumstances, including incest and rape, with the only exception being when the mother’s life is in danger. It makes it illegal to perform an abortion, not for someone to seek or get one.
Whitmer said she would continue to push for abortion rights in Michigan and condemned the Republican-led Legislature for not moving to get rid of the 1931 ban.
An effort to enshrine reproductive freedoms, including the right to abortions, in the Michigan Constitution has submitted petition signatures to the state, hoping to put a proposed constitutional amendment before voters.
“The voters are going to have the chance to weigh in on the ballot initiative this fall,” Whitmer said. “What I’ve been trying to do is just simply preserve the same rights with the same conditions that we’ve had for 49 years.”
The petition signatures must still be verified by the state Bureau of Elections and certified by the Board of State Canvassers before the question can appear on the November ballot.
“…Abortion is still safe and legal in Michigan and Planned Parenthood of Michigan’s doors are open and they’re going to stay open,” Planned Parenthood’s CEO said.
—News 8’s Meghan Bunchman, Kyle Mitchell, David Horak and Madalyn Buursma contributed to this report.