Michigan Judge Blocks Enforcement of 'Dangerous and Chilling' 1931 Abortion Ban

Michiganders who support reproductive freedom breathed a sigh of relief Friday after Oakland County Circuit Judge Jacob Cunningham issued a preliminary injunction targeting the state's 1931 abortion ban--which some prosecutors sought to enforce after the recent reversal of Roe v. Wade.

"Let's take that collective breath together and fight like hell."

"As currently applied, the court finds the statute dangerous and chilling to our state's population of childbearing people and the medical professionals who care for them," the judge said.

"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," added Cunningham, who suggested that the right-wing prosecutors who wanted to enforce the ban instead focus their attention and resources on "criminal sexual conduct, homicide, arson, child and elder abuse, animal cruelty, and other violent, horrific crimes that we see in our society."

While recognizing that the Michigan Supreme Court may soon rule on whether abortion is protected by the state constitution, Cunningham also pointed out that voters may decide to clearly affirm the right through a ballot measure on November 8. He scheduled a pretrial conference for November 21 and said a trial, if needed, would be held no later than February 19, 2023.

"The ultimate expression of political power in this country comes not from the branches of our government and those that serve as public officials in them, but from the people--the citizens, who vote and participate in our fair and free electoral process," he said. "This court finds it is overwhelmingly in the public's interest to let the people of the great state of Michigan decide this matter at the ballot box."

Democratic Michigan Attorney General Dana Nessel--who is up for reelection in November--stressed Friday that "abortion is critical healthcare" and "uncertainty around the law has a chilling effect on the conduct of doctors and therefore limits access to care for Michigan women."

"Maintaining access to reproductive healthcare is absolutely necessary for the health and well-being of women," Nessel said, "and it is our duty to ensure that access for the roughly two million women of reproductive age who call Michigan home."

"Absent this preliminary injunction, physicians face a very real threat of prosecution depending on where they practice," she added. "There is no doubt that the statute criminalizing abortion is in direct conflict with the ability of the medical community to provide the standard of care consistent with their education, training, expertise, and oath."

Gov. Gretchen Whitmer--another Democrat seeking a second term--expressed gratitude for Nessel and her team as well as "this ruling that will protect women and ensure nurses and doctors can keep caring for their patients without fear of prosecution."

Noting that recently in the state, "over the course of a single day, abortion was legal in the morning, illegal around lunchtime, and legal in the evening," the governor argued that "we cannot have this kind of whiplash about something as fundamental as a woman's right to control her own body. Michigan women are understandably scared and angry, and they deserve better than being treated as second-class citizens."

Cunningham's injunction "is welcome news," she said, but "the sad reality is that a number of leaders in the state are actively looking for ways to make sure Michigan's draconian 1931 law, which bans abortion for all women, doesn't include exceptions for rape or incest, and criminalizes nurses and doctors who offer reproductive care, is the law of the land."

"I am proud of my team today, but our work continues," Whitmer added, highlighting her request of the state's high court and pledging to use "every tool in my toolbox to fight like hell for women and healthcare providers."

Jill Habig, president and founder of Public Rights Project--which is leading a coalition of seven pro-choice prosecutors who are party to Whitmer's suit challenging the law--also welcomed the judge's decision.

"Today's ruling underscores just how important it is to have leaders who will fight for their constituents when it matters most."

Friday's ruling "is a critical step toward protecting healthcare for women and guaranteeing a crucial right for equality in Michigan and across the country," she said. "We are grateful for the opportunity to play a part in securing this victory, and will be prepared to fight to keep abortion access secured in Michigan whenever and however we can."

NARAL Pro-Choice America president Mini Timmaraju said that "today's ruling underscores just how important it is to have leaders who will fight for their constituents when it matters most."

"Today, abortion remains legal in the state of Michigan because Gov. Whitmer and Attorney General Dana Nessel took action to protect access," she added. "That's why voters put them in office in 2018, and that's why it's so crucial to reelect them in November."

Bridge Michigannoted that the state Supreme Court "is in summer recess and has not yet indicated whether it plans to consider Whitmer's request" and "a separate challenge to the 1931 law was filed by Planned Parenthood of Michigan and remains pending in the state courts."

David Kallman, an attorney representing prosecutors in Kent and Jackson counties who want to enforce the ban, told the Detroit Free Press that his clients plan to appeal Cunningham's decision.

This post has been updated with comment from NARAL and to correct quotes from Judge Jacob Cunningham that were misreported by a previously cited source.