Prosecutor’s Counsel: Judge Order Repealing Abortion Law ‘Unlawful’

GRAND RAPIDS, Mich. (WOOD) – A Michigan Court of Claims judge has struck down the state’s 1931 law criminalizing abortion.

It is the first time since Roe v. Wade that a Michigan judge ruled on the constitutionality of the ban.

The law would make it a crime to perform abortions unless the mother’s life is in danger. The law provides no exceptions for rape or incest.

Michigan Court of Claims Judge Elizabeth Gleicher argues the ban violates “a pregnant woman’s rights to physical integrity and equal protection under the Michigan Constitution.”

Same also said the ban would endanger the “health and life” of women who want an abortion.

“The enforcement also threatens pregnant women with irreparable harm because without the availability of abortion services, women are denied adequate, safe, and constitutionally protected medical care,” the judge wrote in her ruling.

Specifically, the judge said her decision applies to all district attorneys. This contradicts a previous decision by the Michigan Court of Appeals, which ruled that local prosecutors could enforce the ban.

David Kallman is representing Kent County Attorney Chris Becker, who has said he will consider prosecuting a case if it is brought before him. Kallman criticized Gleicher’s decision, saying the order “cannot be legally enforced against a district attorney.”

“She’s still trying to argue that somehow the attorney general runs all 83 district attorney’s offices in the state of Michigan,” Kallman said. “It has never been like this. No Attorney General has ever claimed such power … the judge goes far beyond anything else in Michigan history has found.”

Kallman said prosecutors should do as they please because the Court of Appeals has already ruled prosecutors can enforce the ban despite Equal’s injunction at the time.

“She’s trying to apply it to the district attorneys again after the appeals court told her outright she couldn’t do it,” Kallman said.

“She doesn’t have the authority to do that,” he added. “This is an illegal order. Our advice to all prosecutors out there is to do your duty and do 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 appeals court will weigh next, followed by the Michigan Supreme Court.

“The Court of Appeal will have an opportunity to consider all of the issues raised in today’s judgment,” she said.

But until that happens, Montague says, prosecutors won’t be able to enforce the 1931 law.

“If there’s a verdict or if there’s a law that’s found to be unconstitutional, then that can no longer be enforced,” Montague said. “Interestingly, the statement specifically states that this ruling should apply not only to the Attorney General’s Office, but also to local prosecutors.”

Same was criticized for not referring the case to another judge, despite having donated to Planned Parenthood in the past.

“When judges have been involved and they financially support a party that comes before them, they usually back out,” Kallman said. “Nor the judge in this case.”

The Michigan Supreme Court is expected to make the final decision on whether abortion rights are protected under the state’s constitution.

“It’s far from over,” Montague said. “There will be additional review, and it probably won’t be until the state Supreme Court speaks that we have a final decision.”

What is likely to happen sooner is a decision on whether a proposal to add abortion rights to the state constitution will go to a vote in November, allowing voters to decide the future of abortion rights.

The Michigan Supreme Court has until Friday to decide whether to put the petition to a vote. More than 750,000 people have signed the petition to put abortion rights on the vote.

Montague said the legal debate surrounding abortion rights is a powerful reminder of the importance of the Constitution.

“It really applies to people’s lives,” she said. “Hopefully everyone now understands the importance of the United States Constitution as well as the Michigan Constitution. … They are there to protect all of our rights.” Prosecutor's Counsel: Judge Order Repealing Abortion Law 'Unlawful'

Dais Johnston

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