Michigan Court of Appeals ruling lets prosecutors file charges under 1931 abortion law

Photo of Angela Mulka
FILE - Angie Kelleher of Midland holds a sign as hundreds attend a rally in support of reproductive rights in reaction to the U.S. Supreme Court's decision to overturn Roe v. Wade Monday, June 27, 2022, in front of the Midland County Courthouse.

FILE - Angie Kelleher of Midland holds a sign as hundreds attend a rally in support of reproductive rights in reaction to the U.S. Supreme Court's decision to overturn Roe v. Wade Monday, June 27, 2022, in front of the Midland County Courthouse.

Katy Kildee/Midland Daily News

An injunction blocking the enforcement of the 1931 Michigan abortion ban issued in May has been lifted for the 13 prosecutors in the state that have abortion clinics in their county.

The Michigan Court of Appeals ruled Monday that the injunction does not apply to county prosecutors, which could make abortion illegal in parts of the state.

The 91-year-old abortion ban, which had been blocked by the injunction from taking immediate effect after the Roe v. Wade ruling, makes it a crime for physicians to perform abortions unless the life of the mother is in danger. It does not include exceptions for rape or incest.

The decision could greatly hinder Michigan Gov. Gretchen Whitmer's, Attorney General Dana Nessel's and many other pro-abortion rights advocates' fight to maintain legal access to abortion. Seven prosecutors in counties with abortion clinics — all Democrats — have previously said they will not enforce the 1931 law.

Republican prosecutors in Kent and Jackson counties, however, plan to enforce the 1931 abortion ban, meaning it would be a felony for a woman to seek abortion care and for a doctor to provide it. Those with felony charges cannot vote in some states. In Michigan, people with convictions can vote after they are released from incarceration.

"If a report is presented to this office, we will review it like we do any other report of possible criminal behavior," Kent County Prosecutor Christopher Becker said in a statement Monday. "We will make the decision to charge, or not to charge, based on the facts presented in the report and the applicable Michigan law."

Whitmer, who has consistently claimed since the Roe ruling that she will "fight like hell to protect a woman’s ability to make her own medical decisions," wrote in a Tweet Monday that "nothing stopped me from fighting before — today is no different."

Nessel, who has previously said she will not enforce the 1931 law, said in a statement Monday that the "legal battle continues on multiple fronts," and that the ruling is not the "final say on this issue in Michigan."

"Today’s ruling will not deter my efforts to continue to fight for Michigan women," Nessel said. "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."

Planned Parenthood of Michigan said in a statement Monday its doors will remain open for abortions.

"Planned Parenthood of Michigan will continue to evaluate our legal options and remains committed to protecting abortion access in Michigan," read the unattributed statement. "Planned Parenthood of Michigan will continue to provide abortion services in accordance with the law. PPMI patients can keep their appointments and our doors remain open."

The Michigan Court of Appeals' decision Monday is unrelated to a lawsuit filed by Whitmer against prosecutors in counties with abortion clinics. The Michigan Supreme Court has not decided whether to take up the case.

On April 7, 2022, Whitmer filed the lawsuit and asked the Michigan Supreme Court to recognize a constitutional right to an abortion under the Due Process Clause of the Michigan Constitution. She filed it nearly one month before the leak of a draft opinion by Justice Samuel Alito indicating the court was prepared to take the step to ban abortion at the federal level.