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Court order will delay reinstatement of MI abortion ban

A split photo of two protests--one against abortion rights and one for. On the left, someone in a pink coat and purple hat holds a red sign that says "Let Their Hearts Beat" in black and white lettering and on the right, an arm holds up a white sign that says "Protect safe, legal abortion" in handwritten pink block letters
Maria Oswalt/Gayatri Malhotra
With the U.S. Supreme Court expected to reverse, or at least roll back, the rights protected by Roe v. Wade, Michigan activists on both sides of the debate are gearing up for a statewide fight this election year.

Michigan is one of more than a dozen states with an abortion ban on the books that was unenforceable following the 1973 Roe v. Wade decision. But that old law is not automatically back in force as a result of Friday’s U.S. Supreme Court decision in the Dobbs v. Jackson case. The dormant Michigan law dates back to 1931 and it says abortion providers can be prosecuted — with exceptions only to save the life of a pregnant woman.

The U.S. Supreme Court decision striking down Roe takes effect in one week, but there is a hold on that in Michigan under a preliminary injunction issued by a Michigan Court of Claims judge.

“That means in all 83 counties, abortion remains legal as of right now,” said Michigan Attorney General Dana Nessel. “Doctors, patients can go about their business exactly as they would have prior to this Dobbs ruling being issued.”

Court of Claims Judge Elizabeth Gleicher, a former abortion rights attorney, ruled a lawsuit filed by Planned Parenthood Affiliates of Michigan to keep abortion legal is likely to succeed and issued the injunction in case Roe is overturned.

Planned Parenthood’s Sarah Wallet says that’s why the organization’s clinics remain open and are accepting patients. “Here in Michigan, we’re still providing care and I am working with our expert team of doctors, nurses and other healthcare professionals to ensure we can provide care to as many patients as possible,” she said. “We are not going anywhere.”

But there’s no way of knowing how long clinics will be shielded from legal action.

Attorney David Kallman represents prosecutors ordered by the Court of Claims judge to refrain from filing criminal charges against abortion providers. He’s filed a motion to have the Michigan Court of Appeals take over the case and lift the injunction.

“Our position right now is the laws are now back in place, and so, since that’s the case, then it’s up to county prosecutors,” he told Michigan Public Radio. “They have prosecutorial discretion. They can choose whether to prosecute or not prosecute.”

There’s also a Michigan Supreme Court case filed by Governor Gretchen Whitmer. She has asked the court to rule that privacy and equal protection clauses in the state constitution also protect abortion rights. Her attorney filed a motion asking the court to accelerate its consideration of her request.

But the Supreme Court is not required to accept the request or even make any decision at all.

There’s also a political track as a ballot drive collects signatures on a petition to put abortion rights protections in the Michigan Constitution. If it makes it to the ballot and is approved by voters, it would preempt the 1931 state law.

Candidates will also campaign on abortion rights during this year’s election season.

“That is clearly in the hands of Michiganders as they look both towards a ballot initiative that is working to being on the ballot to guarantee that right as well as in the election of representatives,” said Michigan House Democratic Leader Donna Lasinski.

Republican leaders in Lansing have made clear there’s little interest on the GOP side of the aisle to change the law. "I don't see anything that needs to be changed right now, "said Republican Representative Joseph Bellino. "I'm sure future legislatures will look at the law and the Supreme Court gave state legislators the right to do what their people want and that's what Michigan people will do."

A handful of GOP lawmakers have called for tougher penalties for abortion providers. The legal cases, ballot drive, and election year arguments are proof that just because the U.S. Supreme Court has made a ruling, it’s not the final decision on abortion rights in Michigan.

(Michigan Public Radio’s Colin Jackson contributed to this report)

Rick Pluta is Senior Capitol Correspondent for the Michigan Public Radio Network. He has been covering Michigan’s Capitol, government, and politics since 1987.
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