County prosecutors can enforce Michigan’s 1931 law that bans abortion, appeals court rules

By Beth LeBlanc | The Detroit News

Lansing – The Michigan Court of Appeals ruled Monday that county prosecutors can enforce Michigan’s ban on abortion despite a state judge’s injunction currently blocking state officials from enforcing the ban.

The ruling could allow county prosecutors to file criminal charges against doctors and health workers who provide abortion services under Michigan’s 1931 abortion ban. The 91-year-old law contains a narrow exception for abortion in cases when terminating a pregnancy is necessary to save the life of the mother.

The Court of Appeals order does not take effect for 21 days to allow time for a possible appeal, during which time Planned Parenthood of Michigan will be exploring its options regarding the ruling, the group said in a statement.

“Planned Parenthood of Michigan will continue to provide abortion services in accordance with the law,” the statement said. “PPMI patients can keep their appointments and our doors remain open.”

David Kallman, a lawyer for the two prosecutors in the case, pushed back on the group’s claim that a 21-day appeal period stayed the effectiveness of the ruling. The wording of the order doesn’t just say prosecutors are free to enforce the law going forward; the order says county prosecutors never were blocked from enforcing, period, Kallman said.

Still, the argument is largely a distinction without much difference, Kallman said. It’s unlikely an investigation could be completed and charges authorized within the 21-day window.

The three-judge panel on Monday dismissed a request by anti-abortion groups and the prosecutors in Kent and Jackson counties to overturn a lower court stay on Michigan’s abortion ban.

The appeals court judges said the Michigan Catholic Conference, Right to Life of Michigan and the two prosecutors lack standing to request Court of Claims Judge Elizabeth Gleicher’s injunction in a suit filed by Planned Parenthood of Michigan be overturned and her case assumed by the higher court. Gleicher’s injunction has been in place since May, before the U.S. Supreme Court overturned a half-century of abortion rights on June 24.

Jackson County Prosecutor Jerard Jarzynka and Kent County Prosecutor Christopher Becker, the panel ruled Monday, are not bound by the injunction because they are not parties to the case nor could they be because the Court of Claims order covered state actors only.

“The preliminary injunction does not apply to county prosecutors,” the three-judge panel wrote.

Kallman called the decision “a victorious defeat.”

“That’s exactly what we wanted,” he said of Jarzynka and Becker. “They were both very pleased with the result.”

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

Right to Life of Michigan and Michigan Catholic Conference, on the other hand, lack standing because “they have not suffered any injury as a result of it,” the Courts of Appeals judges ruled.

Becker in a Monday statement said he appreciated “the clarification” from the Court of Appeals.

“I cannot and will not ignore a validly passed law,” Becker said. “If a report is presented to this office, we will review it like we do any other report of possible criminal behavior.”

The order from Court of Appeals judges Stephen Borrello, Michael Kelly and Michael Gadola comes after the groups requested the higher court exercise superintending control by taking jurisdiction of Gleicher’s case and vacating her injunction.

Gleicher issued her injunction in May in a suit brought by Planned Parenthood of Michigan against Attorney General Dana Nessel. She ruled Planned Parenthood was likely to succeed on the argument that there was a right to abortion in Michigan’s constitution that overrode the state abortion ban, a law that dates back to the 1840s.

The judge ordered Nessel, who declined to defend against the suit, to convey her order to county prosecutors.

But Jarzynka and Becker pushed back, arguing the injunction could not extend to them since they were county elected officials with their own authority independent from Nessel’s. Nessel has argued as much in the past as well.

“…under the totality of the circumstances, the core nature of a county prosecutor is that of a local, not a state official,” the panel wrote. “Because county prosecutors are local officials, jurisdiction of the Court of Claims does not extend to them.”

Kallman noted that, under the law, prosecutions of abortion-related crimes have a six-year statute of limitations. While some prosecutors might now be committing not to prosecute abortion, their successors could decide to do so.

Monday’s Appeals Court ruling came three days after Gleicher denied a motion from the GOP-led Michigan House and Senate to disqualify herself from the litigation because she has made donations to Planned Parenthood in the past.

Gleicher ruled Friday that recusing herself over “small contributions” to the abortion provider would be “simply unprecedented.”

At least seven Democratic county prosecutors said earlier this year they would not enforce the abortion ban within their jurisdictions. The prosecutors refusing to enforce include those representing Wayne, Oakland, Ingham, Washtenaw, Genesee, Marquette and Kalamazoo counties.

Other county prosecutors earlier this year said they hoped the Legislature would make amendments to the law since its last update was more than nine decades ago.

“It needs to be updated before they expect local prosecutors to take away people’s liberty based on that,” St. Clair County Prosecutor Mike Wendling said in May.

Apart from the filing seeking superintending control, the House and Senate have filed appeals in the Court of Appeals regarding Gleicher’s ruling. That appeal is still pending.

The same day Planned Parenthood of Michigan filed its case against the attorney general in April, Gov. Gretchen Whitmer filed a separate suit against 13 county prosecutors in Oakland County Circuit Court seeking a similar ruling that found a right to abortion is already enshrined in the state constitution.

Whitmer also made several requests to the Michigan Supreme Court, asking the justices to rule on her case rather than allowing it to be decided and appealed in the lower courts first.

The state Supreme Court has not yet committed to taking up the case by bypassing lower courts, but the higher court did send several follow-up questions to Whitmer and has been allowing differing parties to weigh in via amicus briefs.

Whitmer’s office on Monday said it was reviewing the Court of Appeals decision and remained committed to continuing to “fight like hell” to preserve access to abortion in Michigan.

“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,” said Kaylie Hanson, chief communications officer for Whitmer.

Whitmer’s case appears to address the issue of county prosecutors more directly than the Planned Parenthood case, an issue Nessel pointed out earlier this year.

Nessel has said she won’t enforce the state’s abortion ban, a position she said deprived the Planned Parenthood case of the case or controversy it needed to have jurisdiction. Prosecutors named in Whitmer’s suit on the other hand, Nessel argued, could create a case or controversy down the road should they attempt to enforce the law.

“Planned Parenthood would be better off if they were focusing on the governor’s case and filing an amicus on behalf of the governor and her actions,” Nessel said in May.

eleblanc@detroitnews.com