Abortion Remains Legal in Michigan After Court Extends Block on 1931 Ban

This story was first published in The 19th.

A Michigan judge on Friday issued a preliminary injunction that prevents county prosecutors from enforcing the state’s 1931 abortion ban. This means that they can’t file criminal charges against abortion providers as the ban allows.

The battle for abortion access has been raging in Michigan courts since June when the U.S. Supreme Court reaffirmed the 1973 Roe v. Wade decision. Gretchen Whitmer is a prominent voice promoting protections.

Michigan’s 1931 abortion law is one of seven Pre-Roe “zombie” bans that had been ineffective during the years that the Roe decision held, according to the Guttmacher Institute, a leading reproductive health research organization. Recent court battles over this 1931 statute have resulted in jarring legal changes which have left providers confused about what they can legally do in the state. Jill Habig is the president and founder of The Public Rights Project, a national civil right organization that works for seven Michigan prosecutors who want the abortion ban to be overturned.

In an interview with The 19th, Habig noted that on August 1, “literally due to some conflicting court opinions in the span of one day, abortion was legal at breakfast, illegal at lunch and legal again at dinner.”

A judge in May suspended the enforcement of the 1931 ban. However, the Michigan Court of Appeals ruled on August 1 that county prosecutors could still bring criminal charges against abortion providers. Later that same day, an Oakland County Circuit Court judge approved Whitmer’s request for a temporary restraining order on that ruling.

On Wednesday and on Thursday the same judge heard arguments from a representative for the Michigan attorney general’s office who said that enforcing the 1931 abortion ban would harm people throughout the state. In this week’s hearings, the state of Michigan argued that this order blocking enforcement of the ban should be extended.

Linus Banghard-Linn, an attorney representing Whitmer on behalf of the state, said the 1931 law “violates the Equal Protection Clause [of the U.S. Constitution] because of the discriminatory motive surrounding it, that it was enacted … essentially, to put it crudely, to keep women in their place.”

The state’s chief medical executive, Dr. Natasha Bagdasarian, also testified, expressing concerns that the abortion ban would exacerbate health disparities for already vulnerable populations like Black women. She stated that Michigan has an average of 12 to 15 women who die each year from pregnancy-related causes.

Attorney David Kallman represented two county prosecutors who argued for the ban on abortion to be implemented. Kallman testified in court that Michigan’s abortion rights were contingent upon the federal Roe V. Wade decision. With Roe overturned, Kallman said, the governor’s team is pushing to claim abortion rights that do not currently exist in state law.

The Judge Jacob Cunningham of Oakland County Circuit Court ultimately sided with the state, saying that it is “clear to the court that only one group is harmed by the [abortion ban]: Women and people capable of carrying children, and one group, men and people capable of impregnating someone, had zero culpability or risk, yet are a necessary component to this equation.”

Cunningham said that the state successfully proved its argument that the abortion ban harmed “the state” by harming its residents.

“Our state is only as strong as its most vulnerable and at-risk populations,” he said. “Criminalization of our medical professionals for treating the women seeking appropriate, safe, constitutionally protected medical care is an irreparable danger to our society at large.”

Cunningham set November 21 as the date for legal proceedings in this case. This was because Michigan voters might have the opportunity to vote on a ballot initiative that would allow abortion access to be protected and render his ruling moot.

Whitmer, who has been Michigan’s governor since 2019, is one of six Democratic women governors in the country who have each taken steps to safeguard abortion access in their states since Roe was overturned in June.

In addition to requesting a restraining order on the Michigan Court of Appeals ruling, Whitmer’s office also filed a lawsuit in April asking the Michigan Supreme Court to bypass lower courts and decide whether Michigan’s constitution protects the right to an abortion.

“While we wait for that court to determine when to rule, the governor will continue using every tool in her toolbox to protect women and health care providers,” Whitmer’s office said in a statement to The 19th.

Whitmer filed a motion to the Michigan Supreme Court requesting that her lawsuit be considered immediately after Roe was overturned.

“I think Michigan is really demonstrating what really inspirational leadership can look like in this moment,” Habig said. “Governor Whitmer is not waiting for somebody else to save us. She is stepping in to say this is an issue that affects everyone in the state of Michigan.”

Two other court cases, one filed in partnership by Planned Parenthood of Michigan and one filed by the ACLU, seek to overturn Michigan’s abortion ban. Multiple lawsuits that seek to protect abortion rights in Michigan allow legal teams to present their cases before different judges with different arguments.

For example, Whitmer’s team can argue their lawsuit based on broader public health risks, while Planned Parenthood can speak to the perspectives of doctors, clinics and other providers.

The Michigan Supreme Court has not stated yet if it will take up Whitmer’s lawsuit. On August 31, Michigan state officials are expected to decide whether the November ballot initiative on abortion will go through. Judge Cunningham welcomed voters’ ability to make the final decision in November.

“The ultimate expression of political power in this country comes not from the branches of our government and those that serve as public officials in them, but from the people, the citizens who vote and participate in our fair and free electoral process,” he said just before issuing the injunction on the abortion law.

Kansas was featured earlier in the month. voters rejected a proposed Constitutional amendment to remove state abortion protections
There are many other options. states, like Indiana, have been published total abortion bans or significant abortion Restictions since Roe were overturned.