Broad injunction means 'abortion up to birth' in Michigan

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A Michigan judge’s injunction against the state’s long-standing abortion law means no protections for the unborn. Critics warn that the judge's order is broader than was Roe v. Wade: it blocks the prosecution of late-term abortions, and of non-doctors who perform illegal abortions.

“The injunction, unfortunately, treats unborn human life like it’s not worth protecting,” Rory Gray, senior counsel with Alliance Defending Freedom legal group, told CNA Aug. 22.

“We're obviously concerned by it. Michigan law should and does protect innocent human life,” he added. The injunction “really does allow abortion on demand, and we’re talking up to the moment of birth.” 

Michigan’s existing abortion law criminalizes abortion as a felony except to save the life of the mother.

The law dates to 1931, though in a 1972 ballot measure 60% of Michigan voters rejected a proposal to allow abortion up to 20 weeks into pregnancy. In 1997, the Michigan Court of Appeals found that there is no right to abortion in the state constitution.

On Aug. 19, Oakland County Judge Jacob Cunningham issued an injunction against thirteen county prosecutors’ enforcement of the law. 

“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,” Cunningham said, according to the Associated Press.

Cunningham seemed to ridicule arguments from prosecutors who wanted to enforce the law, the Detroit Free Press reports. He said that county prosecutors should focus attention and resources to investigate and prosecute “criminal sexual conduct, homicide, arson, child and elder abuse, animal cruelty and other violent and horrific crimes that we see in our society.”

The judge referred to a proposed ballot measure that would create a right to legal abortion in the state constitution.

“This court finds it is overwhelmingly in the public’s best interest to let the people of the great state of Michigan decide this matter at the ballot box,” he said.

David Kallman, an attorney representing two Republican county prosecutors, had argued that a preliminary injunction is not the way to change laws. 

“The judge ignored all of the clear legal errors and problems in this case, it appears to me, simply because the issue is abortion,” he told the Associated Press.

Attorneys for Gov. Gretchen Whitmer, who filed a lawsuit challenging the law in April, argued that if county prosecutors were allowed to decide whether to enforce the law banning abortion, it would cause confusion. Her lawsuit named as defendants the prosecutors in thirteen counties with abortion clinics. Seven Democratic county prosecutors have said they would not enforce the law, while the six remaining prosecutors are Republicans. In theory, prosecutors outside of these thirteen counties could still enforce the law.

Nonetheless, Gray emphasized the extreme impact of the injunction against the law.

“Even under Roe v. Wade, the Michigan law could be enforced against non-physicians and against physicians when they perform abortions after viability and didn’t have a valid reason,” he said. Under the injunction, he said, “there would be nothing these prosecutors could do.”

“The order says that county prosecutors are enjoined from any and all enforcement of the pro-life law. That means that they can’t prosecute even a non-physician who performs an abortion, or an abortionist could take the life of a nine-month-old (unborn) baby for no reason and there would be nothing these county prosecutors could do,” Gray said. 

“There are actually fewer restrictions on abortion than ever,” he added. “Under this injunction, what the pro-abortion side is getting is everything that they want from the ballot initiative that looks like it will be pending soon.”

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The proposed ballot measure, billed by its backers as Reproductive Freedom for All, is set for a hearing on Aug. 31. Backers have collected over 750,000 petition signatures in support of a constitutional amendment. However, foes of the ballot measure have raised concerns about compliance with election law, saying that serious typographical errors on ballot petitions should invalidate the measure.

The Michigan Catholic Conference has warned the proposed change would effectively allow abortion throughout pregnancy, remove parental consent requirements for minors seeking abortions, and allow non-physicians to perform abortions.

It has also criticized the lawsuits against the state law.

“It is unfortunate that the judicial branch is being used to try to invalidate a longstanding policy approved by elected representatives and left untouched by the Legislature for nearly a century since,” Rebecca Mastee, a policy advocate at the Michigan Catholic Conference, said April 7.

Alliance Defending Freedom is representing the Michigan Catholic Conference and Michigan Right to Life in the legal conflicts over the state’s pro-life law.

In early August, a Michigan Court of Appeals ruling overturned a preliminary injunction issued by a state claims court judge. The claims court judge in May had claimed there was a right to legal abortion. However, the appellate court said that county prosecutors have the authority to defend and enforce the state’s abortion law.

Later that same day as the appellate court ruling, Judge Cunningham granted a new injunction against the law.

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