PONTIAC, Mich. (WOOD) — A judge has issued a preliminary injunction preventing county prosecutors from pursuing abortion cases, continuing a halt on enforcement as courts consider challenges to Michigan’s ban or until Michigan voters decide to ensure abortion rights.

“Criminalization of our professionals for treating the women seeking appropriate, safe, constitutionally protected medical care is a irreparable danger to our society at large,” Oakland County Circuit Court Judge Jacob James Cunningham said Friday. “By not issuing an injunction today, the court would send the health care system into crisis, the extreme cost of which would then be put on the women of our great state.”

He cited a likelihood that the state’s law would not hold up to judicial review.

“As currently applied, the court finds the statute dangerous and chilling to our state’s population of child-bearing people and the medical professionals who care for them,” Cunningham said, reading from prepared comments. “The harm to the body of women and people capable of pregnancy in not issuing the injunction could not be more real, clear, present or dangerous to the court.”

“Women and all persons capable of carrying children not having the ability and freedom to consult with their medical professionals without fear of prosecution puts the government into the patient examining room,” he said. “It is clear to the court only one group is harmed by this statute: women and people capable of carrying children.”

He said county prosecutors would not suffer any harm by not being able to charge abortion cases, which they haven’t been able to do for about the last 50 years. He also noted that even if the ban is upheld, prosecutors have six years to file charges before the statute of limitations kicks in.

“The court suggests the county prosecutors focus their attention and resources in the meantime to investigation and prosecution of criminal sexual conduct, homicide, arson, child and elder abuse, animal cruelty and other violent and horrific crimes…” Cunningham said.

The judge also pointed out that voters may soon decide on ballot question that would enshrine abortion rights in the Michigan Constitution. Citing that possible vote on Nov. 8 that may make the case irrelevant, he set the next step in the proceedings — a pretrial conference — for Nov. 21.

“This court finds it is overwhelmingly in the public’s interest to let the people of the great state of Michigan decide the matter at the ballot box, assuming the constitutional amendment initiative is on the ballot…” he said.

Michigan’s ban, which dates to 1931, makes it a felony to perform abortions under most circumstances, with the exception being to save a mother’s life. It stood dormant for nearly 50 years between when the U.S. Supreme Court issued its landmark Roe v. Wade ruling in 1973 and when Roe was overturned earlier this year.

In May, the Michigan Court of Claims ordered the state attorney general and anyone she supervises not to enforce the ban. Kent County Prosecutor Chris Becker and Jackson County Prosecutor Jerard Jarzynka argued they were not supervised by the AG’s office, so the injunction did not apply to them. Earlier this month, the Michigan Court of Appeals agreed. In response, Gov. Gretchen Whitmer’s attorneys filed for a temporary restraining order against county prosecutors, which a judge granted pending a hearing on a preliminary injunction.

Attorneys for both sides spent Wednesday and Thursday presenting their arguments to Cunningham. They brought in doctors and psychologists who laid out their fears of being jailed for providing abortion care, confusion over exactly when an abortion would be considered illegal and expressed concerns about the mental health effects on women who get abortions.

Whitmer’s attorneys called on the judge to institute the injunction so that abortions may continue while legal challenges to the ban filed by Whitmer and Planned Parenthood of Michigan are pending. But the attorney for the Kent and Jackson county prosecutors said courts have previously found that the ban does not violate the state constitution.

Cunningham seemed convinced by arguments from the doctors who testified for the plaintiffs. They said they were concerned about their freedom to swiftly and appropriately treat their patients, specifically in cases of ectopic pregnancies, and wondered where exactly the bar stood for preserving the life of a mother. The judge was skeptical of testimony from the prosecutors’ witnesses, on Friday questioning their research on the mental health effects of abortions and credibility due to personal bias. He said their arguments did not bear weight.

“We feel extremely confident in our case and we’re happy to go to the next stage at the Court of Appeals and make the same arguments there that we did these past two days and demonstrate why we’ll win ultimately when the court rules on the merit,” Chief Deputy Attorney General Christina Grossi said.

“Abortion is critical healthcare. 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 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. There is no doubt that the statue 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.

Women do not need to be protected from themselves by denying them the ability to make personal medical decisions consistent with their own moral, cultural, religious and ethical beliefs. Restricting access to reproductive healthcare jeopardizes the ability of physicians to deliver appropriate care and it denies women the right to decide the most intimate issues regarding their health, their bodies and their lives.”

Michigan Attorney General Dana Nessel

Some county prosecutors, mostly from southeastern Michigan, had already said they would not pursue abortion cases.

“I believe that the people in this state have the right to consistency and stability and to not have to question based on which side of the road they’re on whether or what criminal culpability they have,” Oakland County Prosecutor Karen D. McDonald said.

“The voters will decide and I believe, actually across the country, there is support or overwhelming support for reproductive rights,” she added.

Becker, the Kent County prosecutor, said he would consider abortion cases because he feels he “cannot and will not ignore a validly passed law.”

David Kallman, who represents the Kent and Jackson county prosecutors, told News 8 Friday they were disappointed with the judge’s decision to issue the injunction and will appeal.

“The judge did not address the various legal issues we raised, like for example how is the governor able to sue on behalf of abortion providers and doctors who are not parties to the lawsuit,” Kallman said in a Zoom call. “How is the governor allowed to sue to get an injunction of a law that does not exist. I mean, the status of the law right now in Michigan is there is no right to abortion in Michigan’s constitution.”

The judge did indicate he believed the governor did have standing to sue on behalf of Michigan residents who will be affected by the case.

“The governor should be doing it (working to change the law) through the ballot box or through the Legislature,” Kallman said. “She’s choosing not to do that. That’s her call, but we’ll see what the Court of Appeals says, that’s for sure.”

“I heard yesterday the arguments from the attorney general: the voice of women will be heard and the voice of the doctors… Their voices have to be heard,” Kallman added. “There are other voices that need to be heard. The voice of 30,000 babies who are going to be aborted this year. The voices of all the people in the state of Michigan.”

In a Friday statement, Whitmer praised the injunction, saying it will protect women and that there is already much legal confusion about the abortion ban:

“I am grateful for this ruling that will protect women and ensure nurses and doctors can keep caring for their patients without fear of prosecution. I am particularly grateful to Attorney General Dana Nessel and her team for their work on behalf of the state.

“The lack of legal clarity about abortion in Michigan has already caused far too much confusion for women who deserve certainty about their health care, and hardworking medical providers who should be able to do their jobs without worrying about being thrown behind bars. 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.

“While today is welcome news, my team and I will remain vigilant in protecting reproductive freedom. 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.

“Back in April, I filed a lawsuit and asked the Michigan Supreme Court to determine if abortion is constitutionally protected in Michigan. While we wait for the Supreme Court to rule, I will continue using every tool in my toolbox to fight like hell for women and health care providers.”

Gov. Gretchen Whitmer

—News 8’s Meghan Bunchman and Anna Skog contributed to this report.