Aug 2, 2022 - News

Courts wrestle with enforceability of abortion ban

Abortion advocates rally outside federal courthouse downtown
Abortion advocates rally outside federal courthouse downtown on June 28 in protest of the Supreme Court overturning Roe v. Wade. Photo: Samuel Robinson

The impending legality of abortion in Michigan is uncertain after a whirlwind of legal decisions yesterday.

What's happening: An appellate court ruled in the morning that county prosecutors could start enforcing Michigan's pre-Roe 1931 ban, which makes abortion illegal unless it is necessary to save the pregnant person's life.

  • An Oakland County ruling around nine hours later may negate that — at least for now — but legal opinions on what ruling is enforceable appear to differ.

Why it matters: The appellate court's ruling meant that local officials would decide whether abortions are criminalized.

  • County prosecutors in Wayne, Oakland, Ingham, Washtenaw, Genesee, Marquette and Kalamazoo counties have already said they are "entrusted with the health and safety of the people we serve" and thus don't plan to prosecute abortion cases, per a joint statement.
  • Prosecutors in Jackson and Kent counties said they'd consider charging providers.
  • Macomb County Prosecutor Pete Lucido previously said he would prosecute if police present evidence, according to the Free Press.

Flashback: The ban was temporarily blocked in May, allowing for abortion to remain legal here. Two county prosecutors then sued to stop that order, but the Michigan Court of Appeals dismissed their case because the preliminary injunction "does not apply to county prosecutors," Axios' Oriana Gonzalez reports.

What we're watching: There's a lot up for debate here. The latest order temporarily blocking prosecutors from enforcing the ban comes from Gov. Gretchen Whitmer's emergency order request, but it's not clear if it negates the Court of Appeals ruling.

  • There's also a difference of opinion as to whether the appellate decision would allow abortion cases to be investigated and prosecuted now, or after a 21-day appeal window, the Detroit News reports.

The other side: "If I'm a doctor or a hospital doing abortions in this state, and it's not for anything other than to save the life of the mother, they're putting themselves at risk," David Kallman, an attorney representing the conservative prosecutors, tells Axios. "They could definitely be prosecuted, the 21-day appeal window gives them no protections."

The big picture: Yesterday's ruling is related to a case brought by Planned Parenthood of Michigan, which is asking a court to declare the pre-Roe ban unconstitutional.

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