Michigan abortion remains legal after Oakland County judge upholds injunction on 1931-era ban

Getting an abortion remains legal in Michigan after an Oakland County judge upheld an injunction on the state's ban on the procedure. 

Judge Jacob James Cunningham announced his decision after the governor's legal team sued 13 prosecutors to stop them from enforcing a 1931-era ban against abortion. In his statement he delivered Friday, he said the injunction would remain indefinitely.

"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," he said during his ruling.

The temporary restraining order has been blocking the law from going into effect since early August. Under the ban, providing non-life-saving abortions is prosecuted as manslaughter.  

"A person carrying a child has a right to bodily autonomy and integrity as well as a safe doctor-patient relationship as they have been able to do so for the past 50 years," Cunningham said Friday morning. "Weaponizing the criminal law against providers to force pregnancy on our state's women is simply contrary to the notion of due process, equal protection, and bodily autonomy in this court's eyes."

In his statement, Cunningham said there was "precisely zero harm" to the defense in granting the injunction, while the danger to the state "could not be more crystal clear." While declaring the state's witnesses as credible, he rejected arguments called by the defense, saying evidence they used had been retracted in some cases. 

In his reasoning, the judge also said the 1931 law was crafted almost exclusively by men when it was passed.

"The court briefly questions, for purposes of example only, what would the argument surrounding an equal protection, liberty, bodily autonomy, and bodily integrity argument that would be presented should mandatory vasectomy be at issue today in lieu of child gestation and birth," he said.

"What if men were required to be unable, by statute and threat of criminality to seed children until they could satisfy to their medical professional they were capable to assist the raising and nurturing the education of a child."

The decision was applauded by state Democrats, including from Gretchen Whitmer's office who said a "lack of legal clarity about abortion" has created confusion and allowing the ban to go into effect would exasperate the problem.

"Once, over the course of a single day, abortion was legal in the morning, illegal around lunch time, and legal in the evening. 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."

State Attorney General Dana Nessel said the state ban provided a "chilling effect" on the work of doctors and "therefore limits access to care for Michigan women." Prosecutors from Washtenaw and Oakland, who both delivered statements during the hearing also welcomed the ruling, with Karen McDonald noting the judge found the state's witnesses credible.

Right to Life of Michigan, which advocates against abortion said the ruling was "not very surprising" in a post on Twitter.

"Governor Whitmer is bringing this case because they have never had the votes to change Michigan's abortion law, and doubt they will have the votes in November to add abortion into our constitution. She doesn't really believe in democracy," they wrote. 

Five witnesses testified over the multi-day hearing, including medical professionals and lawyers that gave statements which at times escalated to contentious arguments between the prosecution and defense teams. Cunningham said he found the state's witnesses credible while criticizing testimony from the defense team. 

The cross-examination included grilling witnesses called by the defense over their backgrounds and research, including prosecutors arguing for the judge to toss testimony based on research they argued had been retracted. 

Dr. Diana Nordlund testified on behalf of the prosecution Thursday that she believed the 1931 law could create issues for standard of care of mothers because it providing it might mean doctors and nurses would be committing a crime.

Cunningham referred to Nordlund's testimony as "notable" due to her cited ambiguity that doctors would face when considering a woman's health. 

Defense Attorney David Kallman called two witnesses, Dr. Priscilla Coleman, a professor from Bowling Green State University who testified that issues of abuse and suicide stem from abortion. Whitmer's team pushed to have Coleman's testimony tossed from the record, citing reports that she's had academic studies retracted. 

Cunningham said he would "assign the appropriate weight" to Coleman's testimony.

At one point, Cunningham called for order between Kallman and Prosecutor Melvin Butch Holloway after the latter questioned Dr. Cazan London, and OG/BYN about her credibility.

A temporary injunction blocking Michigan's 1931-era ban on abortion was ordered early August after a lower court ruling. It was extended through Aug. 18 to provide time for legal teams to make their arguments. 

The injunction was upheld only days after a Court of Appeals decision overturned a ruling issued in May that blocked Michigan's abortion ban from going into effect. 

Cunningham's ruling is likely not the end of lawsuits and judicial filings over the state ban on abortion as a ballot petition that would enshrine the procedure in the Michigan Constitution is likely heading toward the November ballot.

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