An Oakland County judge has issued an injunction that continues to block enforcement of Michigan’s 1931 law that bans abortions in most cases.
The ruling converts a temporary restraining order into a slightly more durable preliminary injunction that allows abortion care to continue in the state while legal challenges and a ballot campaign play out.
Judge Jacob Cunningham said the 1931 law appears to violate rights to due process.
And he said Governor Gretchen Whitmer is likely to prevail in her claim that abortion rights in Michigan are protected under the state constitution.
Cunningham also noted an abortion rights proposal could appear on the November ballot and said the public should be given the chance to decide the question. The campaign behind that proposal submitted more than 750,000 signatures to get the proposed measure on the ballot. Just over 425,000 valid signatures are required.
"This court finds it is overwhelmingly in the public’s interest to let the people of the great state of Michigan decide this matter at the ballot box, assuming the constitutional amendment initiative is on the ballot on November 8," Cunningham said.
The preliminary injunction Friday comes after the state Court of Appeals ruled earlier this month that a May preliminary injunction applies only to the attorney general's office, not county prosecutors who handle most crimes.
Cunningham's ruling followed two days of testimony from witnesses. Prosecutors in some of the state's most populous counties have said they would not charge providers regardless of the decision. But Republican prosecutors in Kent, Jackson, and Macomb counties have said they should be able to enforce the 1931 law.
David Kallman, an attorney representing two Republican county prosecutors, said an appeal is planned.
"The judge has ruled. That’s their job. That’s what he does, what he did. We disagree. We’re going to appeal. That’s the way the process works. We’re going to go up to the Court of Appeals," Kallman said.
Governor Gretchen Whitmer said in a statement that the ruling will "protect women and ensure nurses and doctors can keep caring for their patients without fear of prosecution."
"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," Whitmer said.
"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."
Whitmer said her legal team is still waiting for a response to its request to the state Supreme Court to rule on the constitutionality of abortion care.
A statement from Attorney General Dana Nessel echoed Whitmer: “Abortion is critical healthcare. Uncertainty around the law has a chilling effect on the conduct of doctors and therefore limits access to care for Michigan women," Nessel said.
"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," said the attorney general.
"Absent this preliminary injunction, physicians face a very real threat of prosecution depending on where they practice. There is no doubt that the statute 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," Nessel said.
