Abortion could become illegal in parts of Michigan after a state Court of Appeals panel said in a decision released Monday that a judge’s injunction blocking the enforcement of a pre-Roe v. Wade ban doesn’t apply to county prosecutors.
The 91-year-old abortion ban, which had been blocked in May from taking immediate effect, makes it a crime for physicians to perform abortions unless the life of the mother is in danger.
The new ruling will have the largest impact on the 13 prosecutors in the state that have abortion clinics in their county. Seven of those prosecutors — all Democrats — previously said they would not enforce the 1931 law.
Republican prosecutors in Kent and Jackson counties, however, plan to enforce the 1931 abortion ban, meaning abortion providers could get charged with a felony.
“If a report is presented to this office, we will review it like we do any other report of possible criminal behaviour,” Christopher Becker, Kent County’s prosecutor, said in a statement Monday. “We will make the decision to charge, or not to charge, based on the facts presented in the report and the applicable Michigan law.”
Becker, who had previously said in June he would ignore the injunction and enforce the 1931 law, said no reports have been brought to his office to this point. Kent County includes Grand Rapids, the state’s second largest city.
Prosecutor Jerard Jarzynka of Jackson County didn’t immediately respond to a request for comment.
The three-judge panel’s ruling Monday came after Becker, Jarzynka and several anti-abortion groups requested the Court of Appeals overturn a lower-court injunction on the 1931 ban. The court’s ruling Monday said Becker and Jarzynka don’t have standing because the injunction “does not apply to county prosecutors.”
Total or near-total abortion bans are already in effect in the nearby states of Indiana, Ohio and Wisconsin, with bans expected in roughly half the states.
Ruling not ‘final say,’ Michigan AG says
Michigan’s Democratic attorney general, Dana Nessel, who previously said she will not defend the 1931 law, said in a statement Monday the “legal battle continues on multiple fronts” and the ruling is not the “final say on this issue in Michigan.”
Earlier this month, abortion rights activists submitted signatures to bring a constitutional amendment before Michigan voters in November that would affirm the right to make pregnancy-related decisions without interference, including about abortion and reproductive services such as birth control. If the amendment passes, it would supersede the 1931 law.
In his ruling, Judge Stephen L. Borrello stated the court concluded “that on the facts before this court, plaintiffs Jarzynka and Becker are not and could not be bound by the Court of Claims’ May 17, 2022, preliminary injunction because the preliminary injunction does not apply to county prosecutors.”
David A. Kallman, senior legal counsel with the Great Lakes Justice Centre, called Monday’s ruling a “victorious defeat,” because while the case was dismissed by the court, its decision showed the injunction did not apply to county prosecutors.
“So not only are they not bound right now by it, they never could be bound by it,” he said. “They were never bound by it. And that’s been our position from Day 1.
“There have been a lot of other attorneys, and the ACLU [American Civil Liberties Union], and the governor and attorney general all claiming the opposite, that our clients were prohibited and bound by that injunction.
“And that’s simply not true, and the Court of Appeals vindicated our position today. So we’re quite happy with that.”
Only abortion provider may face charges
However, Kallman said, the pregnant person cannot be charged if they have an abortion in Michigan.
“It’s only the doctor or the abortion provider,” he said. “So if I were a doctor or a hospital providing abortion services, if I were them, I would not be doing abortions today unless it’s to save the life of the mother, because otherwise they’re going to be subject to a criminal possible criminal charges, and it’s a felony.
“They have to decide if they’re going to take that risk or not.”
Anyone convicted under the statute, Kallman said, could go to prison, be fined, or lose their medical licence.
Kallman also noted that while the earlier injunction remains in place, it only applies to Michigan Attorney General Dana Nessel.
“Dana Nessel had already stated publicly on numerous occasions she was never going to enforce the abortion statute,” Kallman said. “So it’s an injunction without meaning.
“Technically the injunction is still there, and it still does bar the attorney general from bringing a prosecution, but she won’t anyway.”
In the ruling, Borrello wrote that Michigan law does not give the attorney general “control” over county prosecutors, who still have discretion when exercising their statutory duties.
Kallman said Jarzynka and Becker, who were represented by the centre, are “very pleased” with Monday’s ruling.
In a statement to CBC News on Monday, Planned Parenthood of Michigan (PPMI) said it will continue to provide abortion services in accordance with the law.
“Planned Parenthood of Michigan will continue to evaluate our legal options and remains committed to protecting abortion access in Michigan,” the statement reads. “PPMI patients can keep their appointments and our doors remain open.”
Canadian reaction to Michigan ruling
It’s too early to tell what effect the ruling will have in Windsor, Ont., across the border at Detroit.
But Joyce Arthur, executive director of the Abortion Rights Coalition of Canada, said Monday it may be difficult for places in Canada, like Windsor, to provide abortion access for people coming from the U.S.
“Access might be quite good in some of the major cities like Toronto, Montreal, Vancouver, but really not so good at all in outlying regions and rural areas in the north,” Arthur said. “Windsor is probably a typical example of a mid-size city where there’s only … one or two providers there.”
“I think one of the clinics has already said they’re not going to be helping Americans, so that means possibly just the hospital,” she said. “I think the consensus is that if Americans are coming up to Canada for an abortion, they’d be having to go to the larger cities like Toronto or primarily Vancouver if they live on the West Coast.”
There are other challenges, too, including the cost of travelling to Canada and the need for a passport, Arthur said.
“I’ve only heard now of … a handful of abortions being done [in Canada] for Americans so far since the Roe v. Wade decision came down,.” she said. “Overall, we don’t expect a large number of Americans to be coming up here.”
“That could change. We’ll have to see how things go,” Arthur said. “There’s also been talk, for example, of perhaps some enterprising doctors [opening] border clinics, say, in Windsor or other points near the border in Canada to specifically cater to Americans.”
But the concern about how accepting more Americans would affect access to abortion for Canadians remains, Arthur said.
“I don’t want to see doctors, abortion providers, being drawn away from the public system into the private system, which could affect our access here for Canadians,” she said. “It could increase waiting times. People can start falling through the cracks, especially more marginalized populations.”
I think it’s going to be a years-long process before this will all sort itself out.– Joyce Arthur, Abortion Rights Coalition of Canada
More funding, which would allow Canadian clinics to increase their capacity, would help, Arthur said, as would reducing stigma around abortion.
“If people aren’t willing to talk about it through this culture of shame or silence around abortion, then that affects access as well,” she said. “And it makes even provinces, for example, reluctant to deal with it, especially conservative provinces.
“So we need to deal with that, and that it is kind of a long-term thing,” Arthur said. “And hopefully we can do some short-term measures to ensure that we can improve our access at home and and help Americans, too.
“But I think it’s going to be a years-long process before this will all sort itself out.”