Michigan’s 1931 Abortion Ban Blocked by Judge During Lawsuit

Erik Larson and Evan Peng
·2 min read
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(Bloomberg) -- Abortion remains legal in Michigan after Governor Gretchen Whitmer won a court order blocking enforcement -- for now -- of a 91-year-old ban that could have become law following the US Supreme Court’s decision to overturn Roe v. Wade.

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A preliminary injunction was issued Friday by Circuit Court Judge Jacob Cunningham in Pontiac, Michigan, putting the law on hold while the Democratic governor sues to vacate the statute. The law had already been put on hold earlier by the same judge with a temporary restraining order.

The Supreme Court’s decision in June to overturn the constitutional right to abortion had made the long-dormant Michigan law a threat to abortion access in the state. Several other states have already banned or severely restricted the procedure.

“Absent this preliminary injunction, physicians face a very real threat of prosecution depending on where they practice,” Dana Nessel, Michigan’s Democratic attorney general, said in a statement. “There is no doubt that the statute criminalizing abortion is in direct conflict with the ability of the medical community to provide the standard of care consistent with their education, training, expertise and oath.”

Cunningham scheduled a pre-trial hearing in the case for Nov. 21.

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Groups including Right to Life of Michigan and the Michigan Catholic Conference had filed briefs challenging Whitmer’s right to sue. Their lawyer, John J. Bursch with Alliance Defending Freedom, said in a call that Cunningham’s ruling ignored the lives of the unborn and was not grounded in state law.

“This ruling makes up a right to abortion that can’t be found anywhere in Michigan’s constitutional text or history,” Bursch said.

Michigan’s ban dates back to 1846 but was updated 91 years ago to add a manslaughter charge. Whitmer filed suit after a draft of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization leaked in May.

“The sad reality is that a number of leaders in the state are actively looking for ways to make sure Michigan’s draconian 1931 law, which bans abortion for all women, doesn’t include exceptions for rape or incest, and criminalizes nurses and doctors who offer reproductive care, is the law of the land,” she said Friday.

Whitmer, who is up for re-election this year, is also pushing a voter referendum in the fall to amend the state constitution to enshrine abortion rights.

(Updates with detail from the ruling.)

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