Lansing Oakland County Judge James Cunningham issued a temporary restraining order Monday blocking 13 county prosecutors with abortion providers in their jurisdiction from enforcing the state’s abortion ban. .
The order was issued at the request of Governor Gretchen Whitmer after the Court of Appeals ruled earlier on Monday that county prosecutors were not blocked from enforcing the state’s long-standing abortion ban. by original order of the Court.
Under his order, Cunningham said the order was “necessary to prevent immediate and irreparable harm that would result if defendants were allowed to prosecute abortion providers under (law five). 1931) without a full resolution of the pending cases challenging the statute.”
The judge scheduled a Zoom hearing on the matter for Wednesday.
Cunningham’s order came shortly after Whitmer made the claim in a case against 13 county prosecutors who have abortion clinics in their counties.
Whitmer asked for the ban to come just hours after the Court of Appeals ruled that an order in a separate Planned Parenthood of Michigan case challenging Michigan’s abortion ban did not extend to county prosecutors, only state officials such as the attorney general.
Some county prosecutors have said they will enforce the law if it brings a case that meets the threshold set by the 1931 law. But Planned Parenthood, the plaintiff in that case, said prosecutors are barred acting on Monday’s Court of Appeals decision within 42 days of appeal.
Whitmer’s team said Monday’s order, regardless of when it goes into effect, will create statewide uncertainty and require immediate action from Oakland County Circuit Judge Jacob Cunningham.
“… Health care providers in Michigan are now being forced to choose whether to continue providing health care to women in this state or potentially face criminal prosecution, creates irreparable harm to women who need health care right now,” said Whitmer’s proposal for the temporary moratorium.
Monday’s decision by the Michigan Court of Appeals could allow district prosecutors to file criminal charges against doctors and health care workers who provide abortions under the 1931 abortion ban. Michigan. The 91-year-old law has a narrow exception to abortion in cases where termination of the pregnancy is necessary to save the life of the mother.
Planned Parenthood of Michigan has argued that the ruling is not valid for 42 days – the time to appeal to the Michigan Supreme Court – and any prosecutors who attempt to enforce the law before the appeal period expires. will be disregarded of the court order.
“Planned Parenthood of Michigan will continue to provide abortion services as required by law,” a statement from the group said. “PPMI patients can keep their appointments and our doors stay open.”
But David Kallman, an attorney for two prosecutors in the case, rejected the group’s claim that the appeal period remained in effect. The wording of the order doesn’t just say that prosecutors are free to enforce the law later; The order says that county prosecutors were never blocked from enforcing the law in the first place, Kallman said.
Although prosecutors vary from county to county on whether they will enforce the 1931 law, hospitals and health care systems say they are trying to keep up with different developments in the courts. courts of Michigan and adjust their policies accordingly.
Implications for prosecutors, suppliers
By order Monday, appeals court judges said the Michigan Catholic Conference, Michigan’s Right to Life and two prosecutors were ineligible to ask the Court for a statement by Judge Elizabeth Gleicher in a lawsuit filed by Planned Parenthood of Michigan and her case is presumptive. of the superior court. Gleicher’s order took effect in May, before the US Supreme Court overturned half-century-old 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 order because they are neither parties to the case nor can because the Court The requirement includes only state actors.
“The original order does not apply to district prosecutors,” the three-judge panel wrote.
Kallman called the decision “a winning defeat.”
“That’s exactly what we wanted,” he said of Jarzynka and Becker. “Both were very pleased with the results.”
“None of them have a pending case in front of them right now. If a case comes out and the elements are there, they will prosecute,” Kallman added.
Michigan’s Right to Life, and the Michigan Catholic Conference, on the other hand, lacked standing because “they did not suffer any consequential injuries,” the Court of Appeal judges ruled.
Becker in a statement Monday said he appreciated the “clarification” from the Court of Appeals.
“I cannot and will not ignore a law that has been duly passed,” Becker said. “If a report is presented to this office, we will consider it just like we make any other report of possible crime.”
Likewise, Jarzynka said he is bound by the state’s “validly passed abortion law.”
“If a police agency submits a police report about a possible violation of Michigan’s abortion statute, we will look at it just like we do for any other report to possibly bring charges and that. will depend on the evidence submitted and we can prove a criminal offense beyond a reasonable doubt,” Jarzynka said.
Prosecutors in Cass, Charlevoix, Clinton, Hillsdale and Saginaw counties told The News on Monday that they would also enforce the law if presented with findings that meet the abortion ban’s violation criteria. state.
The health care system with hospitals or clinics in counties where prosecutors say they are willing to enforce the 1931 abortion ban is under review.
“We are aware of the Michigan Court of Appeals decision. We are looking at the implications for our patients and providers,” said Henry Ford Health, which has hospitals in Jackson and Macomb counties. , said in a statement issued Monday.
McLaren Health Care owns more than a dozen hospitals in Michigan including McLaren Macomb Hospital, as well as hospitals in Ohio and Indiana.
Ohio enacted a “heartbeat” law shortly after the U.S. Supreme Court returned the Roe v. Wade case, and the Legislature there is considering a near-total ban. In Indiana, the GOP-controlled Senate passed a bill banning abortion at all stages with almost no exception in a specially convened session on Saturday.
“McLaren Health Care and the hospitals in our network are committed to providing the best care to the patients and communities we have the honor to serve,” said McLaren Health Care Chief Medical Officer, McLaren Health Care, Justin Klamerus said in a statement to The Detroit News on Monday. “This is a complex legal and ethical issue for our society, our patients, and our medical community.
“We are working with our patients and providers to understand the changing laws while also ensuring the care provided complies with those laws,” added Klamerus. “We will continue to closely monitor legal proceedings occurring nationally and within the jurisdictions of the states where we operate in Michigan, Ohio and Indiana.”
Monday’s order from Court of Appeals judges Stephen Borrello, Michael Kelly and Michael Gadola comes after groups asked the higher court to exercise control by giving jurisdiction over his case. Gleicher and ignored her orders.
Gleicher issued his order in May in a lawsuit brought by Planned Parenthood of Michigan against Attorney General Dana Nessel. She ruled Planned Parenthood likely to succeed based on the argument that having an abortion right in the Michigan constitution negated the state’s ban on abortion, a law dating back to the 1840s.
The judge ordered Nessel, who refused to defend the case, forward his order to county prosecutors.
But Jarzynka and Becker refused, arguing that the ban could not be extended to them because they were elected county officials with their own authority independent of Nessel’s. Nessel has also argued much in the past.
“…in the aggregate of circumstances, the core nature of the district attorney is that of a local prosecutor, not a public official,” the panel wrote. “Because county prosecutors are local officials, the Court’s authority to request does not extend to them.”
Kallman notes that, by law, criminal prosecutions related to abortion have a six-year statute of limitations. While some prosecutors may now pledge not to prosecute abortion, their successors may decide to do so.
Monday’s Court of Appeals ruling came three days after Gleicher rejected a motion from the GOP-led Michigan Senate and House of Representatives. to disqualify herself from litigation because she has contributed to Planned Parenthood in the past.
Gleicher ruled Friday that repurposing herself for “small contributions” to an 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 jurisdiction. Prosecutors who refused to enforce include those representing Wayne, Oakland, Ingham, Washtenaw, Genesee, Marquette and Kalamazoo counties.
Other district prosecutors earlier this year said they expect the Legislature to amend 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 liberties based on that,” the St. Clair Mike Wendling said in May.
In addition to filing for superior control, the House and Senate have filed appeals to the Court of Appeal regarding Gleicher’s ruling. That appeal is still pending.
On the same day Planned Parenthood of Michigan filed a lawsuit against the attorney general in April, Whitmer filed a separate lawsuit against 13 district prosecutors in Oakland County Court seeking a similar ruling alleging that abortion rights were recorded. in the state constitution.
Whitmer also made several requests to the Michigan Supreme Court, asking the judges to rule on her case instead of allowing it to be decided and appealed in the lower courts first.
The state Supreme Court has yet to commit to hearing the case by bypassing the lower courts, but the higher court has sent several follow-up questions to Whitmer and has allowed the different parties to consider the matter. via the amicus summary.
Whitmer’s application for a temporary restraining order is one of the more significant filings in the Oakland County case in recent weeks. The Oakland County case is largely a softer case while Planned Parenthood’s preliminary injunction is said to have blocked county prosecutors.
From the outset, state officials argued that the Oakland County case would deal with county prosecutors more directly than the Planned Parenthood case. Nessel pointed out so earlier this year.
Nessel has said she will not enforce the state’s abortion ban, a position she said has stripped Planned Parenthood of its jurisdiction or controversially said it should have jurisdiction. On the other hand, prosecutors named in Whitmer’s case, Nessel argued, could create a case or controversy in the middle of the road if they try to enforce the law.
“Planned Parenthood would be better off if they focused on the governor’s case and filed a lawsuit on behalf of the governor and her actions,” Nessel said in May.
Staff Screenwriter Karen Bouffard contributed.