The three-judge appeals panel ruled that county prosecutors are “local officials, not state officials,” and thus, the court’s decision in May regarding the 1931 law “does not apply to county prosecutors.” Meaning that, while county prosecutors can go after people who perform abortions under the 1931 law—which outlaws all abortions except when the pregnant person’s life is at risk—state prosecutors cannot.
At this time, the state is still blocked from reinforcing the 1931 law. A judge ruled in May that the state could not enforce the 1931 abortion ban again even if the Supreme Court overturned Roe v. Wade, which it did a month later. This decision allowed abortion to remain legal in the state while legal challenges were made.
“Pregnancy and childbirth, particularly if unwanted, transform a woman’s psychological well-being in addition to her body,” Michigan Judge Elizabeth Gleicher said during the May ruling. “As recognized in People v. Nixon half a century ago, legal abortion is actually safer than childbirth. Thus, the link between the right to bodily integrity and the decision whether to bear a child is an obvious one.”
The news is not completely shocking as Michigan Attorney General Dana Nessel had previously said she would not stop county prosecutors from taking action if the court said it could be enforced. She did, however, emphasize Monday that she and local Democratic prosecutors would not be enforcing the ban.
“Today’s ruling will not deter my efforts to continue to fight for Michigan women. The legal battle continues on multiple fronts, and those of us who value access to reproductive health care and respect a woman’s right to make the best decisions for herself, according to her own moral, cultural, and religious beliefs, are not backing down. While I respect the ruling from the court, it is by no means the final say on this issue in Michigan,” Michigan Attorney General Dana Nessel said in a statement.
Of course, while many advocates are upset with the outcome of Monday’s ruling, others say it was “exactly what we wanted.”
David Kallman, the attorney representing Jackson County Prosecutor Jerard Jarzynka and Kent County Prosecutor Christopher Becker, told the Detroit News that while neither prosecutor “has a pending case in front of them right now” involving the abortion ban, “if a case is brought to them and the elements are there, they will prosecute.”
“We’re ecstatic. It’s wonderful. That’s exactly what we’ve been saying all along,” Kallman said Monday morning in an interview with the Free Press.
As people worry about what this decision will now have in store for Michigan, abortion activists and providers remain strong. Planned Parenthood of Michigan said in a statement Monday it will continue to provide abortion services in the three weeks before the appeals ruling takes effect as it considers its options. It’s unclear at this time whether or not they will perform abortions once the ruling takes effect.
“Planned Parenthood of Michigan will continue to evaluate our legal options and remains committed to protecting abortion access in Michigan,” the statement read. “Planned Parenthood of Michigan will continue to provide abortion services in accordance with the law. PPMI patients can keep their appointments, and our doors remain open.”
Additionally, several county prosecutors in Michigan have vowed they will not enforce the law, meaning abortion may be permissible in some parts of Michigan but not in others.
Kaylie Hanson, Governor Gretchen Whitmer’s chief communications officer, also issued a statement on behalf of the governor confirming the order was being reviewed.
“As we look at next steps, Michiganders should know that Governor Whitmer will continue to fight like to hell to protect a woman’s ability to make her own medical decisions with her trusted health care provider,” Hanson said.
“Earlier this year, Governor Whitmer took executive action asking the Michigan Supreme Court to resolve whether the state constitution protects the right to abortion. 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.”
The appeals court ruling is set to take effect in 21 days, the ability to prosecute will be given to the state’s 83 county prosecutors.