A Michigan court on Monday ruled that county prosecutors can enforce an abortion ban that has been on the books since 1931, exempting them from a different court’s ruling that blocked state officials from enforcing the law.
The decision by the three-judge Court of Appeals panel marks a victory for anti-abortion county prosecutors in Michigan, who have sought to enforce the ban after the U.S. Supreme Court overturned the landmark 1973 Roe v. Wade case and enabled states to outlaw abortion.
Michigan’s 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.
In May, Michigan Court of Claims Judge Elizabeth Gleicher issued a temporary injunction blocking Michigan Attorney General Dana Nessel and other state officials from enforcing the ban.
The Court of Appeals on Monday ruled that county prosecutors, however, were not bound by Gleicher’s order.
“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.
David Kallman, a lawyer representing Kent and Jackson County prosecutors Christopher Becker and Jerry Jarzynka, said they were “very pleased” with the order.
Both prosecutors have abortion providers in their county, and Kallman said his clients would likely prosecute in cases where abortion providers appear to have violated the 1931 law by performing abortions outside a medical emergency.
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.
“As we review the Court of Appeals decision, know that I will continue to fight like hell to protect a woman’s ability to make her own medical decisions with her trusted health care provider,” Whitmer wrote on Twitter on Monday.
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.
