Monday, August 01, 2022

Michigan's Pre-Roe Abortion Ban May Now Be Enforceable By County Prosecutors

As previously reported, in May Michigan Court of Claims issued a preliminary injunction barring enforcement of the state's 1931 pre-Roe abortion ban while a challenge to that law under the Michigan state constitution is being litigated. In response, two county prosecutors and two anti-abortion organizations filed a complaint with the state Court of Appeals seeking an Order of Superintending Control that would require the state Court of Claims to dismiss the case for lack of jurisdiction. (See prior posting.) Today in In re Jarzynka, (MI App., Aug. 1, 2022), the Michigan Court of Appeals dismissed that suit for lack of standing. It held that the anti-abortion groups have not suffered a sufficient injury by the Court of Claims decision to give them standing to challenge it.  As to the prosecuting attorneys, the Court of Appeals held that the Court of Claims injunction applies only to the state Attorney General's office and does not apply to county prosecutors. As reported by the Detroit News, this holding would seem to now allow county prosecutors to file criminal charges under the 1931 statute against abortion providers. State Attorney General Dana Nessel says that Democratic prosecuting attorneys have committed to not enforcing the 1931 ban.

UPDATE: AP reports that just hours after the Court of Appeals decision, an Oakland County judge, at the request of Michigan Governor Gretchen Whitmer, issued a temporary restraining order against prosecutors in counties with abortion providers barring enforcement of the 1931 law.  He scheduled a hearing for Wednesday.