After a lengthy recital of his decision, Circuit Court Judge Jacob J. Cunningham’s decision was quite simple: plaintiffs faced far greater harm if the 1931 abortion ban – which could be overturned imminently by the state Supreme Court or replaced by an electoral referendum this fall – have been implemented.
“While the court appreciated that both sides in this debate are passionate in their beliefs, by not issuing an injunction today, the court would send the health care system into a crisis, the extreme costs of which would then be imposed on the women of our great state. and, not lost on the ground, without any repercussions for men who, without a doubt, are a necessary element in creating pregnancy,” Cunningham said.
The 1931 law makes nearly all abortions a crime with no exceptions for rape or incest, allowing it only in loosely defined cases where abortion is necessary to “preserve the life” of the mother. Abortion providers and people who use medication to self-manage an abortion could face up to four years in prison.
Michigan, a perennial swing state, is shaping up the fiercest battleground over access to abortion in the post-deer time. The ultimate fate of abortion access in the state will have downstream effects on people seeking abortions in surrounding states, given Michigan’s location. Illinois and Minnesota are the only other Midwestern states to have protected abortion access, so far. Wisconsin is in a similar situation to Michigan, with its purple electorate and a Democratic governor clashing with an anti-abortion Republican legislature.
Whitmer welcomed Friday’s decision, saying she would continue to work to ensure the 1931 law never comes back into effect.
“Michigan’s lack of legal clarity on abortion has already caused far too much confusion for women who deserve certainty in their health care, and medical providers who should be able to do their jobs without worrying about be thrown behind bars,” she wrote. .
Friday’s ruling is the latest twist in Michigan’s dizzying back-and-forth over the legality of abortion.
After Wimer sued for preventively protecting access to abortion in April, a claims court judge issued a preliminary injunction in May to stop state Attorney General Dana Nessel (D) and local prosecutors from enforcing the 1931 ban (Nessel, the ally of Whitmer on abortion rights, said she had no intention of enforcing the ban).
But on August 5, the Michigan Court of Appeals ruled that the preliminary injunction did not apply to local prosecutors, including 13 who expressed a desire to enforce the ban. Soon after, Whitmer sought court intervention in Oakland County; Cunningham issued a temporary restraining order, which again prevented the 1931 Act from being enforced until the court ruled further.
Alongside the legal battle initiated by Whitmer, a second lawsuit was filed by Michigan Planned Parenthood which seeks to prevent Nessel’s office from enforcing the ban while the law is under review.
“There will be providers who could be charged with crimes that will result in the loss of their liberty if incarcerated and their livelihood if they lose their medical license,” Cunningham said in court Friday. “The number of women affected in the scenario where they are forced to give birth or move for treatment [or] experiencing irreversible uterine damage from an untreated ectopic pregnancy – to name a few of many horrific outcomes – is not quantifiable for the purposes of this scenario.
By contrast, he said the court found “no prejudice whatsoever to defendants who are barred from enforcing this particular law.”
Cunningham said the desire to prosecute a ban that hasn’t been used for more than half a century betrays the selective – not coercive – interest of the defendants. Not being allowed to prosecute a law they haven’t prosecuted in decades wouldn’t prevent district attorneys from prosecuting other more relevant crimes off the books.
“County prosecutors are also free to exercise their discretion to prosecute under MCL 7.50.30 – the felony of adultery, also a felony – which, to the knowledge of this court, has been denied prosecution. in any Michigan jurisdiction in recent memory. ,” he said.
The State Board of Solicitors will meet at the end of the month to determine whether voters’ referendum to change the state constitution to protect abortion rights appears on the ballot.