Michigan court blocks enforcement of 1931 abortion ban by county prosecutors

[August 02, 2022]  By Gabriella Borter and Sharon Bernstein

(Reuters) -A Michigan judge on Monday blocked local prosecutors from enforcing a 1931 abortion ban, just hours after an appeals court ruled that they could do so, state Attorney General Dana Nessel said.

But in Kentucky the latest ruling from a judge reinstates two abortion bans for now, while the underlying challenge to the laws is litigated.

Nessel said the temporary restraining order in Michigan by Oakland County Judge Jacob Cunningham halted action under a ruling by an appeals court earlier Monday that had opened the door to such prosecutions.

"This temporary restraining order ensures prosecutors cannot target women or providers in the short-term," Nessel said in a press release. "Women should feel comfortable to move forward with their planned medical procedures and providers in those counties should feel confident to practice medicine free from the threat of prosecution."

The Michigan law, one of several state abortion bans enacted before the Roe v. Wade ruling legalized abortion nationwide nearly 50 years ago, makes it a felony to perform an abortion except to save the pregnant woman's life.

The back-and-forth over whether it can be enforced is the latest example of dueling legal rulings that are whipsawing abortion providers and patients in numerous states with conservative-majority legislatures, as regulation of abortion falls to the states and new and old laws are challenged in the courts.

The state Court of Appeals in Kentucky granted an emergency request by Republican Attorney General Daniel Cameron to reinstate two laws that would prohibit almost all abortions. A lower court had previously blocked the two laws, finding that they likely violated the state's constitution.

In Michigan, enforcement of the 1931 ban by state officials was blocked by another court, the Court of Claims, in May. But on Monday a three-judge panel of the state's Court of Appeals ruled in favor of the prosecutors on the basis that they were local officials. This marked what seemed to be a victory for anti-abortion advocates.

Pro-Choice supporters of Planned Parenthood rally outside a Planned Parenthood clinic in Detroit, Michigan, U.S. February 11, 2017. REUTERS/Rebecca Cook/File Photo

"The core nature of a county prosecutor is that of a local, not a state official. Because county prosecutors are local officials, jurisdiction of the Court of Claims does not extend to them," presiding Judge Stephen Borrello wrote.

The lawyer for the local prosecutors who had sought that order, David Kallman, did not immediately respond to a request for comment from Reuters. Earlier, he had said Kent and Jackson County prosecutors Christopher Becker and Jerry Jarzynka were "very pleased" with the appeals court order that said they were not state officials.

Democratic Governor Gretchen Whitmer, who filed a lawsuit in April to prevent the 1931 law from taking effect, has made protecting abortion access in Michigan a central part of her campaign for re-election this fall.

Concerned that the Republican-controlled legislature will try to restrict abortion, Whitmer is pressing the state Supreme Court to recognize the right to abortion under the state constitution.

Abortion rights supporters also have filed a petition to put a state constitutional amendment on the ballot this fall, which would allow Michigan voters to decide if abortion rights are protected. Opinion polls show the majority of Michigan residents support the right to abortion.

(Reporting by Gabriella Borter and Sharon Bernstein; Editing by Colleen Jenkins, Bill Berkrot and Bradley Perrett)

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