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Can Michigan abortion providers be prosecuted now? State, county prosecutors disagree

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Jodi Westrick
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Michigan Radio
Abortion supporters and opponents rally in Ann Arbor.

State regulators and the Michigan attorney general are reassuring healthcare providers that they can legally provide abortions in Michigan, but a lawyer for the Kent and Jackson County prosecutors said Monday that doctors can immediately be prosecuted for performing abortions now that the U.S. Supreme Court has overturned Roe v. Wade.

At issue is a Michigan judge’s temporary order blocking enforcement of the state’s 1931 abortion ban, and whether it applies only to state Attorney General Dana Nessel, or to all local county prosecutors as well.

The case began on April, when Planned Parenthood of Michigan filed a lawsuit against Nessel, arguing that the 1931 abortion ban violates the state’s constitution and shouldn’t be enforced. (Nessel has publicly said her office wouldn’t enforce the 1931 law, which makes abortion a felony even in the case of rape or incest. But she’s also said she can’t control what local county prosecutors decide to do.)

In May, Court of Claims trial Judge Elizabeth Gleicher issued an preliminary injunction against Nessel, prohibiting her from enforcing the 1931 law until the court makes a final ruling in the case. Gleicher’s order said Nessel “and anyone acting under [Nessel’s] control and supervision … are hereby enjoined during the pendency of this action from enforcing” the 1931 law. It also said Nessel “shall give immediate notice of this preliminary injunction to all state and local officials acting under defendant's supervision that they are enjoined and restrained” from enforcing the abortion ban.

But Kent County Prosecutor Chris Becker and Jackson County Prosecutor Jerard Jarzynka have argued in court filings that the injunction “does not bind county prosecutors” from pursuing charges against doctors who perform abortions. They “believe that they have the authority, as the county prosecutor, to either charge or not charge” an abortion provider now that Roe v. Wade has been overturned, their attorney David Kallman told Michigan Radio Monday. (Kallman made similar remarks to Bridge Michigan.) “And I would be concerned if I were a doctor in some of these counties around the state, where prosecutors will do their constitutional duty.”

Becker, in a statement provided Monday when asked if he would currently prosecute an abortion provider, said, “I have always held it would be improper for me to pick and choose the laws I wish to enforce that have been validly passed and signed. I will not start now.”

But that directly contradicts guidance issued to doctors on Monday morning by the Michigan Department of Licensing and Regulatory Affairs (LARA).

“In Michigan, there is an injunction in place, based on a court order prior to Friday’s U.S. Supreme Court decision, that protects women seeking abortion services and the health care professionals assisting them,” the statement from LARA said. “It is LARA’s position that abortion remains legal in Michigan because of the current injunction that prohibits enforcement of the 1931 law. … The Department of Licensing and Regulatory Affairs will not take any action against any health professionals for providing legal abortion services while the current injunction remains in place.”

For those like Dr. Lisa Harris, a professor of Obstetrics and Gynecology at the University of Michigan, LARA’s guidance is sufficient reassurance.

“At the moment, the injunction is allowing me and my colleagues to continue to provide the care that we would ordinarily provide,” Harris said in a virtual press conference Monday. “And today, LARA … also came out and very clearly said that abortion care provision under the injunction is acceptable. And in fact, we should just continue to provide the care that we've always provided. So that is how me and my colleagues are proceeding."

"I can't speak to other people, but it just shows how much fear and uncertainty is there, and will impact physicians' and teams’ decision making and care provision,” Harris said.

In fact, over the weekend, BHSH System, which was formed by the merger of Beaumont Health and Spectrum Health, initially announced it would no longer be providing most abortions, before backtracking a day later.

For Dr. Melissa Bayne, an OB-GYN in Fremont, a doctor’s willingness to take the potential legal risk of providing abortions “also depends on your employer. And if you're in private practice … there are some of us that are more protected than others are, based on where we're at and who we work for … and the legal team that we have behind us.”

Indeed, Kallman said it does matter where abortion providers are located. “I’d say to a doctor in Kent County or Jackson County or any other county in the state, they’d better think twice before they're providing an abortion in those counties,” he said. “Because they could be subject to that prosecution.”

In May, after the injunction barring enforcement of the state's abortion ban was issued, Kallman and legal teams representing the Michigan Catholic Conference and Right to Life Michigan asked a higher court to cancel it. They filed a complaint asking the Court of Appeals to “exercise its supervisory control over the Court of Claims and Judge Gleicher and vacate the improper injunction.”

The Court of Appeals granted their motion for immediate consideration, setting a deadline of July 5 for legal filings.

On Monday, Governor Gretchen Whitmer filed a notice with the Michigan Supreme Court, “urging them to immediately consider her lawsuit to decide if Michigan’s state constitution protects the right to abortion,” Whitmer’s office said. The “confusion” over whether abortion providers can currently be prosecuted is a key reason, she said.

“Right now, abortion remains safe and legal in Michigan because of a court order temporarily blocking enforcement of the state’s 1931 abortion ban,” said Whitmer.

“But in the wake of the decision in Dobbs overturning Roe, certain county prosecutors and health providers have expressed confusion about the current legal status of abortion in Michigan. This only underscores the need for the Michigan Supreme Court to act now, which is why I sent a notice to the court urging them to immediately take up my lawsuit and decide if access to abortion is protected under the Michigan Constitution. Getting this done will put an end to any confusion and ensure that Michiganders, health providers, and prosecutors understand the law.”

Kate Wells is a Peabody Award-winning journalist currently covering public health and the COVID-19 pandemic.
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