Judge: Gov. Whitmer won't have to testify at hearing over abortion law, appeal filed
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Editor's note: This story has been updated to reflect an appeal to the judge's ruling.
Michigan Gov. Gretchen Whitmer will not have to testify at an Aug. 17 hearing over the state's 1931 abortion law, a judge ruled Wednesday — a decision that has already been appealed.
Whitmer was served a subpoena Monday by David Kallman, an attorney representing two county prosecutors who challenged a previous Court of Claims ruling that an injunction binds them from prosecuting abortion providers.
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That injunction preserved the right to an abortion in Michigan, even after the Supreme Court overturned Roe v. Wade, but the Michigan Court of Appeals ruled Aug. 1 that county prosecutors were not bound by the injunction.
Whitmer's legal team requested a temporary restraining order against prosecutors barring them from enforcing the 1931 law, which Oakland County Circuit Court Judge Jacob Cunningham granted hours after the Court of Appeals ruling. Cunningham set a hearing date of Aug. 17 to determine whether a preliminary injunction would be issued.
Abortion currently remains legal in Michigan under Cunningham's temporary restraining order.
The 1931 law bans abortion unless done to save the life of the pregnant person. It contains no exceptions for rape or incest. Whitmer has called the law "draconian."
Kallman, who is representing Kent County Prosecutor Chris Becker and Jackson County Prosecutor Jerry Jarzynka in the lawsuit, served Whitmer with the subpoena Monday.
"She's the one that brought the lawsuit. I think we have the right to question her on the merits of her request for an injunction," Kallman told the Free Press on Monday.
Cunningham disagreed, issuing a one-page order Wednesday quashing the subpoena. Kallman appealed the ruling in a motion filed with the Michigan Court of Appeals on Thursday, arguing that Cunningham did not allow the prosecutors' legal counsel to respond to Whitmer's request to quash the subpoena.
"If the trial court’s order is not peremptorily reversed, then the serious legal issues
raised in this matter will be moot and Appellants will be irreparably harmed because their right to call Plaintiff as a witness at the August 17, 2022 hearing will not be possible," Kallman wrote.
Whitmer's legal team filed a motion for a preliminary injunction against the 1931 law Wednesday. Cunningham will hear arguments from counsel for the governor and the prosecutors Aug. 17.
Planned Parenthood of Michigan and Whitmer have each asked the Michigan Supreme Court to weigh in on the constitutionality of the 1931 abortion law. The court has not indicated whether it will take the cases up.
Michigan voters may ultimately decide the legality of abortion in the state: a proposed ballot measure to constitutionally protect abortion rights gathered more than 750,000 signatures. The state is in the process of verifying those signatures and there should be a decision on whether the measure qualifies for the ballot later this month.
Contact Arpan Lobo: alobo@freepress.com. Follow him on Twitter @arpanlobo.
This article originally appeared on Detroit Free Press: Whitmer may not have to testify at hearing over abortion law
