Michigan Court Says County Prosecutors Can Now Enforce 91-Year-Old Abortion Ban

Update: After this story was published, an Oakland County Circuit temporarily paused enforcement of Michigan’s abortion ban, responding to a request from Gov. Gretchen Whitmer (D).

County prosectors in Michigan can enforce a 91-year-old abortion ban, a state appeals court ruled Monday.

The 1931 law criminalizes the act of performing an abortion — by both physicians as well as pregnant people who use abortion medications — in all cases except to “preserve the life” of the mother.

The law was unenforceable for nearly half a century thanks to Roe v. Wade. In May, a month before the Supreme Court overturned Roe, a Michigan Court of Claims judge granted a preliminary injunction that paused the enforcement of the law.

But on Monday, a three-judge Michigan Court of Appeals panel said that injunction applied only to Michigan’s attorney general and those under her control and supervision — which excludes county prosecutors, the court ruled. The ruling will take effect in 21 days, and Planned Parenthood of Michigan, one of the plaintiffs in the original court of claims suit, has indicated it may appeal the decision. 

Democrats in Michigan’s Republican-dominated (and historically gerrymandered) legislature have tried, unsuccessfully, to repeal the abortion ban. 

A ballot measure offers some hope in the state: Last month, a ballot committee pursuing a state constitutional amendment to protect abortion rights in Michigan submitted 753,759 signatures to election officials, a state record and well over the threshold necessary to qualify for November ballot placement, once election officials confirm that at least 425,059 signatures are valid. In the meantime, several prosecutors have pledged not to enforce the 1931 law.

Michigan Attorney General Dana Nessel (D), who has previously said abortion rights are “hanging on by a thread” in Michigan, said Monday, “the thread has torn.” 

“The Michigan Court of Appeals has just ruled that MI’s 83 county prosecutors can now begin enforcing the abortion ban,” Nessel wrote on Twitter. “But note that the Dem prosecuting attorneys have committed to refuse to enforce the ban, and the injunction still applies to my department.” 

‘A Victorious Defeat’

The crux of Monday’s ruling comes down to the nature of county prosecutors. After the May injunction from a court of claims judge, two county prosecutors — Jerard Jarzynka of Jackson County and Chris Becke of Kent County — sought to have the state’s Court of Appeals take over the case. 

But the three-judge appeals court panel dismissed that effort Monday, writing that county prosecutors “are local officials, not state officials,” and therefore not affected by the lower court’s May decision. 

“Because county prosecutors are local officials, jurisdiction of the Court of Claims does not extend to them,” the appeals court’s order read.

David Kallman, a lawyer for the two county prosecutors, called the decision “a victorious defeat” to The Detroit News Monday.

“Neither of them has a pending case in front of them right now,” Kallman added. “If a case is brought to them and the elements are there, they will prosecute.”

Mark Brewer, an attorney for Planned Parenthood of Michigan told Bridge Michigan Monday that “the decision is wrong, but it doesn’t take effect for 21 days.” 

“We’re looking at our options,” including a potential appeal, Brewer said.

A spokesperson for Gov. Gretchen Whitmer (D), who filed a separate lawsuit in May seeking to protect abortion rights, urged the state Supreme Court to take up that suit. 

“The Michigan Supreme Court could take up the governor’s lawsuit at any time, and they should do so immediately to provide clarity for Michiganders that their right to abortion remains unchanged,” the governor’s spokesperson, Kaylie Hanson, told the Detroit Free Press.