Michigan judge issues indefinite ban on criminalizing abortions in key Michigan counties

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A Michigan judge ruled Friday prosecutors in the state's largest counties are barred from bringing criminal charges for months to come under a state law banning most abortions.

The decision from Oakland County Circuit Court Judge Jacob Cunningham comes after two days of hearings and means every county in Michigan with an abortion clinic is at least temporarily immune from the threat of criminal prosecutions over abortion procedures.

“As currently applied, the court finds (the abortion law) is chilling and dangerous to our state's population of childbearing people and the medical professionals who care for them,” Cunningham said.

"The harm to the body of women and people capable of pregnancy in not issuing the injunction could not be more real, clear, present and dangerous to the court."

Oakland County Circuit Court Judge Jacob Cunningham listens to testimony Thursday during a hearing involving the legality of abortion in Michigan.
Oakland County Circuit Court Judge Jacob Cunningham listens to testimony Thursday during a hearing involving the legality of abortion in Michigan.

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At times, Cunningham seemed to ridicule arguments from conservative prosecutors seeking to enforce the 1931 abortion law. He said prosecutors would suffer zero harm from not having the ability to prosecute abortion providers.

Going much further, he told these prosecutors to instead focus their efforts elsewhere.

"The court suggests county prosecutors focus their attention and resources ... to investigation and prosecution of criminal sexual conduct, homicide, arson, child and elder abuse, animal cruelty and other violent and horrific crimes that we see in our society," Cunningham said.

Cunningham also repeatedly referenced a possible change to the Michigan Constitution that will likely appear on ballots later this fall. He said while the Michigan Supreme Court may rule on the constitutionality of abortion at any time, voters may ultimately approve a proposed amendment that would expressly include the right to an abortion in the state Constitution.

"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.

"This court finds it is overwhelmingly in the public's interest to let the people of the great state of Michigan decide this matter at the ballot box."

The preliminary injunction follows a temporary restraining order from Cunningham, both of which blocked prosecutions in the 13 counties where all of the state's abortion clinics are located. Gov. Gretchen Whitmer sued those officials earlier this year in anticipation that the U.S. Supreme Court would overturn Roe v. Wade.

David Kallman, a conservative lawyer representing prosecutors in Kent and Jackson counties who want the right to enforce the law that criminalizes all abortions except those performed to save the life of a pregnant person, said his clients planned to appeal.

"I can't say that I'm surprised," Kallman said after the ruling, noting Cunningham's comments during previous hearings.

"It's a sad day for the rule of law."

Whitmer welcomed Cunningham's ruling, but said the fight for abortion rights is not over.

“While today is welcome news, my team and I will remain vigilant in protecting reproductive freedom," Whitmer said in a statement.

"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. I am proud of my team today, but our work continues."

Conservative prosecutors in Kent, Macomb and Jackson counties opposed the decision, arguing they have the right to enforce the law. But Whitmer's team and Democratic prosecutors in many of Michigan's largest counties — including Wayne, Oakland and Washtenaw — supported the ruling, saying it's necessary to maintain abortion rights afforded under Roe until a court ultimately rules on Whitmer's lawsuit.

In a fiery closing statement Thursday, Chief Deputy Attorney General Christina Grossi said the order maintaining those rights is crucial to many of the state's roughly 2 million women, thousands of whom are livid following Roe's reversal.

"Women are upset because our bodies are regulated, and they are politicized in ways that men's bodies are never politicized or regulated. And women are upset and angry because some people suggest that our rights are subject to popular vote while a man's rights are bestowed upon him at birth," Grossi said.

"Some women are upset and angry because they have done this all before, and they're upset and angry because they realize now their daughters have to do it again."

Kallman countered in his own statement, suggesting implementing the injunction would remove the rights of far more Michiganders than those who would be affected if there were no order.

"It's the choice of the right of all the people in the state of Michigan to weigh in and vote or go through their representatives and do it through the proper legislative and elective process to change a law. That is the way our system works, not with these kinds of lawsuits," he said.

"The floodgates are opened if this process is allowed."

Both Whitmer's team and Kallman questioned several witnesses over the course of two days, including four hours of testimony Thursday. On Friday, Cunningham said he found the state's witnesses knowledgeable and helpful but entirely dismissed the testimony of the two people offered by the Kent and Jackson county prosecutors, noting questions about their credibility.

The witnesses for Whitmer's team discussed their views, as doctors, of the impact of enforcing the criminal abortion ban on physicians and those seeking an abortion. Kallman's witnesses suggested there is an increased risk of detrimental mental impacts after obtaining an abortion, a view widely criticized by other experts.

Dr. Priscilla Coleman recently retired as a professor at Bowling Green State University. She has repeatedly produced work that she says shows there is a clear correlation between obtaining an abortion and an increased risk of suffering mental health problems afterward.

She said she has reviewed studies from around the world to arrive at that conclusion, arguing none of her findings that have been published were retracted.

But her work is widely disputed by many experts, including the American Psychological Association. Critics suggest Coleman's work is foundationally flawed and mirrors her own personal view — during the hearing Thursday, she confirmed she does not support any abortion but one performed to save the life of a pregnant person.

Jonathan Miller, a private lawyer working for Whitmer's team, explored these criticisms while cross-examining Coleman, questioning that was far and away the most hostile during the proceeding.

Asked why her research does not comport with the findings of most experts, at one point, Coleman said, "the media" and research refute it because "the research is not politically correct."

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Kallman also questioned Dr. Gianina Cazan-London, an OB-GYN in Michigan who specializes in maternal fetal medicine. She said the state's 1931 law criminalizing most abortions is clear, especially the portion that says, "to preserve the life of such woman."

"We're not forced to do abortions, as physicians. We have the right to say no," she said.

"I would never pull another one out."

She's also spoken out publicly against the efficacy of masks in slowing the spread of COVID-19, an opinion that goes against accepted medical norms. Melvin Butch Hollowell, a lawyer representing Oakland County Prosecutor Karen McDonald in the case, pushed Cazan-London on these comments and others during a cross-examination that was at times testy.

Ultimately, the governor's team asked Cunningham to toss all testimony from both Coleman and Cazan-London, suggesting neither's statements should be considered. He denied the requests, instead saying he would give their statements the "proper weight."

Whitmer's team called Dr. Diana Nordlund, an emergency room physician and lawyer in the Grand Rapids area. She discussed her own concerns and similar frustrations from colleagues since Roe was reversed, specifically how the state's abortion ban could impact the treatment of ectopic pregnancies or other reproductive health procedures.

The 1931 law "creates a significant area of concern" in terms of standard of care, Nordlund said. That means physicians are required to abide by the standard of care mandated by their profession, but doing so could mean violating the criminal abortion ban. So doctors could face civil lawsuits or penalties for not acting, and criminal charges for acting, Nordlund said.

The order applies only to the 13 prosecutors sued by Whitmer. That means in theory, prosecutors in the remaining 70 Michigan counties would not be barred from bringing charges under the abortion ban.

More than 88% of abortions in Michigan in 2021 occurred in free-standing clinics.  But that still means more than 3,300 abortions were performed in hospitals, a doctor's office or somewhere else.

Representatives with the Michigan Department of Health and Human Services declined to say whether it has heard of any hospitals or other facilities in the 70 counties have stopped providing abortions or whether they are providing separate advice to providers in these areas.

Contact Dave Boucher: dboucher@freepress.com or 313-938-4591. Follow him on Twitter @Dave_Boucher1.

This article originally appeared on Detroit Free Press: Michigan judge bans criminalizing abortions in key counties