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Appeals court rules abortion ban injunction doesn't apply to county prosecutors

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Jodi Westrick | Michigan Radio
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Kent County prosecutor Chris Becker reacted to the Court of Appeals ruling Monday by saying he appreciated the clarification. Becker had previously said he didn’t believe the injunction applied to county prosecutors, and that his office would take on abortion prosecutions if cases were referred to him.

“I cannot and will not ignore a validly passed law,” Becker said Monday. “If a report is presented to this office, we will review it like we do any other report of possible criminal behavior. We will make the decision to charge, or not to charge/ based on the facts presented in the report and the applicable Michigan law.”

Becker said as of Monday, his office hadn’t received any referrals to prosecute based on the 1931 abortion law.

Meanwhile, seven other county prosecutors issued statements Monday saying they won’t prosecute abortion cases regardless of the court’s ruling.

“[W]e will not use our offices’ scarce resources to prosecute the exercise of reproductive freedom,” the seven prosecutors wrote. “Instead, as these issues continue to play out in court, we will remain focused on the prosecution of serious crimes.”

That statement was signed by prosecutors in Wayne, Oakland, Washtenaw, Genesee, Ingham, Kalamazoo and Marquette counties.

Update: Monday, August 1, 2022, 5:07 p.m.:

Governor Gretchen Whitmer has asked for a restraining order to block local prosecutors from filing felony charges against abortion providers in Michigan. There was confusion over the status of abortion rights in the the state Monday after a Court of Appeals decision overruled a lower court judge's order that local prosecutors cannot file charges under a 1931 law. Abortion providers said they will continue to offer services while the case is sorted out.

Original post:

The Michigan Court of Appeals has overturned a lower court decision regarding the state’s dormant abortion law.

The appeals court ruling paves the way for county prosecutors to file criminal charges against abortion providers under the 1931 state law. That law would ban all abortions in Michigan except to save the life of a pregnant person.

Still, Planned Parenthood of Michigan says it will continue providing abortion services. The organization says the decision does not take effect for 21 days, allowing time for parties to appeal the ruling.

"The injunction barring enforcement of Michigan’s 1931 criminal abortion ban remains in effect and applies to all Michigan county prosecutors. Under Michigan court rule MCR 7.215(F)(1)(a), 'the Court of Appeals judgment is effective after the expiration of the time for filing an application for leave to appeal to the Supreme Court, or, if such an application is filed, after the disposition of the case by the Supreme Court.' This means that the Michigan Court of Appeals ruling cannot take effect during the 21 day appeal window."

"PPMI patients can keep their appointments and our doors remain open," the organization said.

However, the Great Lakes Justice Center, which represents clients seeking enforcement of the 1931 abortion ban, disputes Planned Parenthood's interpretation of the 21-day period. In a statement Monday afternoon, the center said, "Any claim that this order is not effective for 21 days is without merit. The injunction was never applicable to county prosecutors in the first place."

Attorney General Dana Nessel issued a statement on the court's decision, saying, "Today’s ruling will not deter my efforts to continue to fight for Michigan women. The legal battle continues on multiple fronts and those of us who value access to reproductive healthcare and respect a women’s right to make the best decisions for herself, according to her own moral, cultural and religious beliefs are not backing down. While I respect the ruling from the court, it is by no means the final say on this issue in Michigan.”

Seven Democratic prosecutors in the 13 counties with abortion clinics have already said they will not charge abortion providers, but Republican prosecutors in Kent and Jackson counties have previously said they will.

The pre-Roe ban had been blocked in May from taking immediate effect.