A Michigan judge on Friday issued a preliminary injunction that prevents county prosecutors from enforcing the state’s 1931 abortion ban. This means they cannot file criminal charges against abortion providers, as would be permitted by the ban.

Since the U.S. Supreme Court overturned the landmark 1973 Roe v. Wade decision in June, a battle over abortion access has played out in Michigan courts, with Democratic Gov. Gretchen Whitmer emerging as a prominent voice pushing for protections.

Michigan’s 1931 abortion law is one of seven Pre-Roe “zombie” bans that had been ineffective during the years that the Roe decision held, according to the Guttmacher Institute, a leading reproductive health research organization. The recent court battles over this 1931 law have led to jarring legal changes that have left providers confused and fearful over what they can do legally in the state, said Jill Habig, president and founder of the Public Rights Project, a national civil rights organization that is working on behalf of seven Michigan prosecutors who want to overturn the abortion ban.

In an interview with The 19th, Habig noted that on August 1, “literally due to some conflicting court opinions in the span of one day, abortion was legal at breakfast, illegal at lunch and legal again at dinner.”

In May, a judge suspended enforcement of the 1931 ban, but on August 1 the Michigan Court of Appeals ruled that county prosecutors could still file criminal charges against abortion providers under the law. Later that same day, an Oakland County Circuit Court judge approved Whitmer’s request for a temporary restraining order on that ruling. 

On Wednesday and Thursday, the same judge heard arguments from a representative for  the Michigan attorney general’s office who said that enforcing the 1931 abortion ban would harm people throughout the state. In this week’s hearings, the state of Michigan argued that this order blocking enforcement of the ban should be extended.

Linus Banghard-Linn, an attorney representing Whitmer on behalf of the state, said the 1931 law “violates the Equal Protection Clause [of the U.S. Constitution] because of the discriminatory motive surrounding it, that it was enacted … essentially, to put it crudely, to keep women in their place.”

The state’s chief medical executive, Dr. Natasha Bagdasarian, also testified, expressing concerns that the abortion ban would exacerbate health disparities for already vulnerable populations like Black women. She noted that generally between 12 and 15 women die each year in Michigan from pregnancy-related causes.

The opposing side was argued by attorney David Kallman, who represents two county prosecutors arguing for the abortion ban to take effect. Kallman said in court that abortion rights in Michigan were contingent on the federal Roe v. Wade decision. With Roe overturned, Kallman said, the governor’s team is pushing to claim abortion rights that do not currently exist in state law. 

The Judge Jacob Cunningham of Oakland County Circuit Court ultimately sided with the state, saying that it is “clear to the court that only one group is harmed by the [abortion ban]: Women and people capable of carrying children, and one group, men and people capable of impregnating someone, had zero culpability or risk, yet are a necessary component to this equation.”

Cunningham said that the state successfully proved its argument that the abortion ban harmed “the state” by harming its residents.

“Our state is only as strong as its most vulnerable and at-risk populations,” he said. “Criminalization of our medical professionals for treating the women seeking appropriate, safe, constitutionally protected medical care is an irreparable danger to our society at large.”

Cunningham set the date for further legal proceedings in this case for November 21, given that Michigan voters may have an opportunity to vote on a ballot measure that would protect abortion access and render his ruling moot.

Whitmer, who has been Michigan’s governor since 2019, is one of six Democratic women governors in the country who have each taken steps to safeguard abortion access in their states since Roe was overturned in June.  

In addition to requesting a restraining order on the Michigan Court of Appeals ruling, Whitmer’s office also filed a lawsuit in April asking the Michigan Supreme Court to bypass lower courts and decide whether Michigan’s constitution protects the right to an abortion.

“While we wait for that court to determine when to rule, the governor will continue using every tool in her toolbox to protect women and health care providers,” Whitmer’s office said in a statement to The 19th.

Shortly after the ruling on Roe, Whitmer filed a motion urging the Michigan Supreme Court to immediately consider her lawsuit.

“I think Michigan is really demonstrating what really inspirational leadership can look like in this moment,” Habig said. “Governor Whitmer is not waiting for somebody else to save us. She is stepping in to say this is an issue that affects everyone in the state of Michigan.” 

Two other court cases, one filed by Planned Parenthood of Michigan in partnership with an abortion provider and another filed by the ACLU, are also aiming to overturn the Michigan abortion ban. Having multiple lawsuits that push for a similar outcome of protecting abortion rights allows the legal teams to present cases in front of different judges with different arguments, Habig said.

For example, Whitmer’s team can argue their lawsuit based on broader public health risks, while Planned Parenthood can speak to the perspectives of doctors, clinics and other providers.

The Michigan Supreme Court has not stated yet if it will take up Whitmer’s lawsuit. On August 31, Michigan state officials will determine whether the ballot initiative on abortion will be approved for the November ballot. Judge Cunningham welcomed voters’ ability to make the final decision in November.

“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 just before issuing the injunction on the abortion law.

Earlier this month, Kansas voters rejected a proposed constitutional amendment to eliminate state abortion protections.
A number of other states, like Indiana, have issued total abortion bans or significant abortion restictions since Roe was overturned.