St. Clair County prosecutor won't enforce law criminalizing abortion while injunction in place

Editor's note: A previous version of this story mischaracterized the data regarding the rate and number of abortions that St. Clair and Sanilac county residents received. 

The St. Clair County prosecutor called on the Michigan legislature or courts to clarify a 1931 law criminalizing most abortions following the U.S. Supreme Court's decision to overturn Roe V. Wade Friday.

The Supreme Court's decision nullified the 1973 landmark case that protected abortion access in the U.S., sending the question of abortion rights to the states.

St. Clair County Prosecutor Mike Wendling said his office does not plan to enforce a 1931 Michigan law criminalizing most abortions while a preliminary injunction blocking the law remains in place.

The 1931 law bans all abortions unless performed to save the life of the pregnant person, and contains no exceptions for rape or incest. The law also criminalizes selling or advertising medications that could induce an abortion.

The 1931 law currently cannot be enforced, due to an injunction issued by Michigan Court of Claims Judge Elizabeth Gleicher in May. Michigan Attorney General Dana Nessel has vowed not to appeal the injunction, and has said she will not enforce it if it takes effect.

There are several challenges to the 1931 law, including from the Republican-led Michigan legislature, prosecutors in Kent and Jackson counties and Right to Life of Michigan.

According to the Michigan Department of Health and Human Services, the abortion rate for St. Clair County women aged 15 to 44 in 2021 was 10 per 1,000, and Sanilac County's was 6.3 per 1,000, compared to 15.1 per 1,000 in Michigan.

St. Clair County residents received 267 abortions in 2021, and Sanilac County residents received 41.

What happens if the injunction is lifted?

If the injunction is lifted and the 1931 law goes into place without clarification on the law from the state legislature or courts, and an investigating agency found a suspect to charge under the 1931 law, Wendling said his office would review cases presented to them to determine whether they should move forward with prosecution.

"We would review every case on a case-by-case basis and at that point decide first of all, whether it's a violation of that '31 law if valid, whether it's in the interest of justice to move forward with our prosecution in that case and whether a jury would reasonably be expected to return a conviction in that manner," Wendling said. "It's my opinion that I'm elected to enforce the laws as it's written. Legislature writes the law, courts interpret the law; we have to enforce the law and I don't get to necessarily substitute my opinion for or against any given statute."

But, there is a lot that would have to happen to reach that point, Wendling said, and it's impossible to say what would happen with a case involving an abortion without the facts and circumstances of the case and clarification on the 1931 law.

"If all those things fell in place, then I would have to make a decision on how we go forward , and I can't make that decision until I see it," he said.

Wendling said he hopes the state legislature or courts clarify the 1931 law and the legal implications of abortion so that local law enforcement and prosecutors do not have to make their own decisions on the law.

"A lot has changed in the last 90 years in healthcare, in related issues in that manner, that I think the law needs to be further reviewed," Wendling said. "Either the legislature or the courts are going to have to come to a conclusion of what they want the law to be and how they want that enforced so we're hoping that guidance comes quickly."

If the legislature or courts fail to act, Wendling said Michigan residents could be left with differing enforcement and application of the law across the state's 83 counties.

"My biggest concern, frankly, from a law enforcement standpoint, is that no one will act...Then not only will we have 50 states that could have different situations, we're going to end up with 83 counties within our state that may have different applications to that law. And I don't know how the general public can go about their lives not knowing whether something is legal or illegal within the county they're in," Wendling said.

The Sanilac County Prosecutor's Office declined a request for comment.

Contact Laura Fitzgerald at (810) 941-7072 or lfitzgeral@gannett.com. 

This article originally appeared on Port Huron Times Herald: St. Clair County Prosecutor calls on state to clarify 1931 law criminalizing abortion