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If Roe goes, some Michigan county prosecutors vow not to prosecute abortion cases

Sharmin Hossain, a Campaign Director for Liberate Abortion, stands with abortion-rights supporters outside the U.S. Supreme Court building Tuesday.
Dee Dwyer
Sharmin Hossain, a Campaign Director for Liberate Abortion, stands with abortion-rights supporters outside the U.S. Supreme Court building Tuesday.

The U.S. Supreme Court appears poised to overturn Roe vs. Wade and with it, the constitutional right to abortion.

If and when that happens, abortion would become illegal in Michigan. That’s because the state still has a 1931 law that bans abortion in nearly all cases, except when the mother’s life is in danger.

But seven Michigan county prosecutors have said publicly that they won’t prosecute abortion cases.

In an open letter dated April 7, the prosecutors — Oakland County’s Karen McDonald, Ingham County’s Carol Siemon, Washtenaw County’s Eli Savit, Genesee County’s David Leyton, Wayne County’s Kym Worthy, Marquette County’s Matthew Wiese, and Kalamazoo County’s Jeffrey Getting — wrote:

"Michigan's anti-abortion statutes were written and passed in 1931. There were no women serving in the Michigan legislature. Those archaic statutes are unconstitutionally and dangerously vague, leaving open the potential for criminalizing doctors, nurses, anesthetists, health care providers, office receptionists — virtually anyone who either performs or assists in performing these medical procedures. Even the patient herself could face criminal liability under these statutes."

"We believe those laws are in conflict with the oath we took to support the United States and Michigan Constitutions, and to act in the best interest of the health and safety of our communities," the prosecutors continued. "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. Instead, we will continue to dedicate our limited resources towards the prosecution of serious crimes and the pursuit of justice for all."

Washtenaw County Prosecutor Eli Savit said prosecutors have discretion about when to issue charges. Sometimes, that’s because they think evidence is lacking. “But there's also cases that prosecutors simply decline to charge in the interest of justice, because we are charged with making that decision,” he said. “And we elect prosecutors for a reason.”

On May 3, Savit and the other six prosecutors also filed motions in support of Governor Gretchen Whitmer’s lawsuit. It asks the Michigan Supreme Court to rule that the 1931 law violates the equal protection and due process clauses of the state constitution. All seven are among 13 defendants named in the lawsuit, as prosecutors in the Michigan counties where abortions are currently performed.

In their motion, the prosecutors note that the law would have a “chilling effect.” Even in counties “where prosecutors are not inclined to prosecute abortion, “criminal” abortion cases could still be investigated by law enforcement if [the 1931 law] springs back into effect,” they wrote in the motion. Worse, they said, people could still be arrested for abortion — even in counties where prosecutors would generally decline such cases.

“Put bluntly: A storm is gathering,” the motion continued, urging the court to act quickly.

“A cloud of uncertainty and criminality looms over the exercise of a right that has been expressly protected by the U.S. Constitution for a half-century. The residents of Michigan — including those in Respondents Prosecuting Attorneys’ counties — deserve clarity as to the existence and scope of core constitutional rights. And they deserve it now, before anyone is faced with the prospect of criminal liability for exercising their rights.”

Michigan Attorney General Dana Nessel has said she too will not pursue abortion cases while she remains in office. But Nessel has also acknowledgedthat she cannot prevent elected county prosecutors from bringing such cases.

In addition to Whitmer’s lawsuit, reproductive rights activists led by Planned Parenthood and the ACLU of Michigan are also gathering petition signaturesfor a ballot measure that, if successful, would enshrine abortion and other reproductive rights in the state constitution.

Sarah Cwiek joined Michigan Public in October 2009. As our Detroit reporter, she is helping us expand our coverage of the economy, politics, and culture in and around the city of Detroit.
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