By Allison R. Donahue, Michigan Advance

After the state Court of Appeals ruled Monday that county prosecutors are exempt from the injunction on the 1931 abortion ban, another judge just hours later ordered a temporary restraining order barring the ban from being enforced. 

The request for the restraining order came from Democratic Gov. Gretchen Whitmer, who called the Court of Appeals decision “dangerous.” Gov. Gretchen Whitmer spends time with people attending a rally protesting the Supreme Court’s decision to overturn Roe v. Wade on June 24, 2022. | Photo by Andrew Roth

Michigan 1931 abortion ban, which prohibits doctors from performing any abortions except to save the life of the “pregnant woman,” has been blocked since May when Court of Claims Judge Elizabeth Gleicher issued an injunction while a Planned Parenthood lawsuit was in litigation.

The injunction is the only thing protecting abortion access in the state after the U.S. Supreme Court overturned Roe v. Wade on June 24. 

“We cannot risk further confusion for women, health care providers, and all Michiganders,” Whitmer said in a statement Monday. “As today’s unexpected action proves, the overturn of Roe v Wade in June has left reproductive freedom hanging by a thread in Michigan”

Two county prosecutors in Michigan — Jackson County Prosecutor Jerard Jarzynka and Kent County Prosecutor Christopher Becker — have said since June that they would enforce the ban.

“The legal fight in Michigan continues and this temporary restraining order ensures prosecutors cannot target women or providers in the short-term,” said Democratic Attorney General Dana Nessel.  “Women should feel comfortable to move forward with their planned medical procedures and providers in those counties should feel confident to practice medicine free from the threat of prosecution while my department continues to pursue all legal options available to ensure reproductive healthcare in our state.”

Circuit Judge Jacob Cunningham responded swiftly to the governor’s request, granting a temporary restraining order to prohibit enforcement of Michigan’s 1931 statute criminalizing abortion, including local county prosecutors.

Cunningham said that a temporary restraining order is “necessary to prevent the immediate and irreparable injury that will occur if” county prosecutors are exempt from the injunction and able to charge doctors for performing abortions before there is a decision on the major abortion cases in the state.

A hearing in the Oakland County Circuit Court is scheduled for Wednesday.

In April, Whitmer and Planned Parenthood of Michigan filed two separate lawsuits, both with the end goal of repealing the 91-year-old abortion ban.

Whitmer’s lawsuit, filed in the Oakland County Circuit Court, seeks to recognize the right to an abortion under the state constitution and to strike down the state’s 1931 abortion ban law. The defendants named in this case are county prosecutors for the 13 Michigan counties that have abortion clinics.

Planned Parenthood of Michigan and Michigan abortion provider Dr. Sarah Wallett filed a lawsuit that same day in the state’s Court of Claims to block enforcement of the state’s 1931 felony abortion ban. 

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