Judge Blocks Prosecutors From Enforcing Abortion Ban After MI Supreme Court Gave Go-Ahead

MICHIGAN — An Oakland County judge blocked county prosecutors Monday from enforcing the state's abortion ban after Gov. Gretchen Whitmer filed a motion for a temporary restraining order.

Whitmer filed the motion just hours after the Michigan Supreme Court ruled that a temporary injunction blocking enforcement of the state's 1931 abortion ban does not apply to county prosecutors, meaning doctors could immediately face criminal charges for performing abortions.

In his ruling granting Whitmer's request, Judge Jacob J. Cunningham said "the restraining order was necessary to prevent the immediate and irreparable injury that will occur if defendants are allowed to prosecute abortion providers under (the 1931 law) without a full resolution of the merits of the pending cases challenging the statute."

Although Whitmer acknowledged the victory, she noted it is only temporary and urged the Michigan Supreme Court to recognize a right to abortion under the state's constitution.

"I immediately filed for a temporary restraining order, and I am proud that the Oakland Circuit Court has approved my request," Whitmer said. "This lack of legal clarity—that took place within the span of a workday—is yet another textbook example of why the Michigan Supreme Court must take up my lawsuit against the 1931 extreme abortion ban as soon as possible."

Cunningham's order says there will be a new hearing to discuss the matter, which is scheduled for Wednesday inside an Oakland County Circuit Court. The losing side of the hearing will most certainly file another appeal, eventually taking the case up to the state's supreme court.

Although the Michigan Supreme Court's ruling Monday cleared county prosecutors to punish doctors for performing abortions, numerous prosecutors said they will not enforce the abortion ban, including in Genesee, Ingham, Kalamazoo, Marquette, Oakland, Washtenaw and Wayne counties.

The state's 1931 abortion ban was triggered after the U.S. Supreme Court overturned Roe v. Wade. Prior to that decision, Michigan Court of Claims Judge Elizabeth Gleicher blocked immediate enforcement of the state's 1931 law, but the state supreme court's Monday decision basically nullified that injunction.

As the battle of the restraining order plays out, Whitmer filed a motion in April asking the supreme court to immediately recognize a right to an abortion under bodily integrity provisions in the state's constitution. She urged the court again Monday to take action.

Even with all the court battles surrounding the 1931 abortion ban, the state's voters may ultimately end up determining whether abortion will be legal in Michigan.

A petition that would allow Michigan voters to choose if abortion is a reproductive right was submitted to election officials after it gained more than 750,000 signatures, which is significantly more than the 453,000 it needs to make the Nov. 8 ballot.

Election officials were expected to rule on the proposal by its Sept. 9 deadline. If it makes its way onto the ballot and voters approve, the measure would amend the state's constitution to guarantee the right to make decisions about all matters relating to pregnancy, including birth control, abortion, prenatal care and childbirth.