GRAND RAPIDS, Mich. (WOOD) — A Michigan Court of Claims judge has struck down the state’s 1931 law that criminalizes abortion.
It’s the first time since Roe v. Wade was overturned that a Michigan judge has ruled on the constitutionality of the ban.
The law would make it a crime to perform abortions unless the life of the mother is in danger. There are no exceptions for rape or incest under the law.
Michigan Court of Claims Judge Elizabeth Gleicher argues the ban would violate a “pregnant woman’s rights to bodily integrity and equal protection under the Michigan’s constitution.”
Gleicher also said the ban would “endanger the health and lives” of women seeking abortions.
“Enforcement also threatens pregnant women with irreparable injury because without the availability of abortion services, women will be denied appropriate, safe and constitutionally protected medical care,” the judge wrote in her ruling.
Notably, the judge said her ruling applies to all county prosecutors. That contradicts a prior decision by the Michigan Court of Appeals, which ruled that local prosecutors could enforce the ban.
David Kallman is representing Kent County Prosecutor Chris Becker, who has said he will consider prosecuting a case if it is brought to him. Kallman blasted Gleicher’s decision, saying the order “cannot legally be enforced against any county prosecutor.”
“She’s still trying to argue that somehow the attorney general runs all 83 prosecutor’s offices around the state of Michigan,” Kallman said. “That has never been the case. No attorney general has ever claimed such power … the judge is going way beyond what anybody else has ever found in Michigan history.”
Kallman said prosecutors should do as they please because the Court of Appeals has already ruled that prosecutors can enforce the ban despite Gleicher’s preliminary injunction at the time.
“She is once again trying to apply it to county prosecutors after the Court of Appeals directly told her she could not do so,” Kallman said.
“She does not have the authority to do it,” he added. “This is an unlawful order. Our advice to any prosecutor out there is to carry out your duties and do it as you see fit, and this cannot be used against you in any way.”
Sarissa Montague, a criminal defense attorney for Levine & Levine in Kalamazoo, said the Court of Appeals will be able to weigh in next and the Michigan Supreme Court after that.
“The Court of Appeals will have the opportunity to look at all of the issues that were addressed in this ruling that came out today,” she said.
But until that happens, Montague says prosecutors can’t enforce the 1931 law.
“If there is a ruling or if there is a statute that is deemed unconstitutional, then that no longer can be enforced,” Montague said. “Interestingly this opinion specifically states that this ruling is supposed to be applied not only to the attorney general’s office but also to local prosecutors as well.”
Gleicher has faced criticism for not handing over the case to another judge despite the fact she’s donated to Planned Parenthood in the past.
“Typically when judges have been involved and they provide financial support to a party that’s appearing in front of them, they typically recuse themselves,” Kallman said. “And the judge didn’t in this case.”
The Michigan Supreme Court is expected to make the ultimate decision on whether abortion rights are protected under the state’s constitution.
“It’s far from over,” Montague said. “There is going to be additional review, and it won’t be probably until the state supreme court speaks that we have a final ruling.”
What will likely happen sooner is a decision on whether a proposal adding abortion rights to the state constitution will make the November ballot, allowing voters to determine the future of abortion rights.
The Michigan Supreme Court needs to rule by Friday on whether that petition will make the ballot. More than 750,000 people signed the petition to put abortion rights on the ballot.
Montague said the legal debate surrounding abortion rights is a strong reminder of the importance of the constitution.
“It really does apply to people’s lives,” she said. “Everyone now I hope is understanding how important the United States Constitution is as well as the Michigan Constitution. … They’re there to protect all of our rights.”