(Source: MIRS.news, Published 08/01/2022) An Oakland County judge temporarily blocked eight Michigan prosecutors from enforcing the state's 1931 abortion ban – hours after a higher court said they could.
Judge James Cunningham's temporary restraining order in Gov. Gretchen Whitmer's suit against county prosecutors came late Monday, holding that prosecutors' public comments that they will consider a criminal case against an abortion provider and the Court of Appeals' decision that a lower court's order doesn't apply "poses a threat of immediate and irreparable injury to the people of the State of Michigan."
"A temporary restraining order is necessary to preserve the last actual, peaceable, uncontested status quo pending further order from the court," Cunningham's three-page order reads. "… A (TRO) is necessary to prevent the immediate and irreparable injury that will occur if defendants are allowed to prosecute abortion providers under MCL 750.14 without a full resolution of the merits of the pending cases challenging that statute."
Cunningham scheduled a Wednesday hearing to review his order.
David Kallman, attorney with the Great Lakes Justice Center, said the prosecutors will immediately file an appeal after the hearing because their preliminary review of the order has found procedural errors and deficiencies.
"We're obviously very disappointed that a judge in a case of this magnitude … issued a TRO – this is like, unheard of," he said. "… These are constitutional issues that a court should hear from everybody before making a decision. … It's wrongly decided."
Cunningham's order, which came about an hour after Whitmer's team filed their motion, says the named defendants – prosecutors from Emmet, Genesee, Grand Traverse, Ingham, Jackson, Kalamazoo, Kent, Macomb, Marquette, Oakland, Saginaw, Washtenaw and Wayne counties – are ordered to "refrain from enforcing MCL 750.14 until further order of the court."
Whitmer said she is "grateful for this relief – however temporary – because it will help ensure that Michigan's doctors, nurses and health care systems can continue caring for their patients."
Attorney General Dana Nessel also welcomed the TRO, saying: "Women should feel comfortable to move forward with their planned medical procedures and providers in those counties should feel confident to practice medicine free from the threat of prosecution while my department continues to pursue all legal options available to ensure reproductive healthcare in our state."
Whitmer's motion came after a three-judge panel from the Michigan Court of Appeals held two prosecutors, who wanted the court to take superintending control of a separate lawsuit filed by Planned Parenthood of Michigan in the Court of Claims, lacked standing.
The appeals court's order said prosecutors, Jackson County's Jerard Jarzynka and Kent County's Christopher Becker, "are not and could not be bound by the Court of Claims' May 17, 2022, preliminary injunction because the preliminary injunction does not apply to county prosecutors."
In separate statements early in the day, Becker and Jarzynka expressed appreciation for the appeals court's clarification of the lower court's ruling, both agreeing that Gleicher's injunction "never applied to county prosecutors."
Both Becker and Jarzynka also noted that they will not violate or ignore a "validly passed law" and they will review any submitted police reports like they do any other report of possible criminal behavior.
To date, neither prosecutor has received such reports for review.
In May, Court of Claims Judge Elizabeth Gleicher granted a preliminary injunction stopping Nessel and all state and local officials acting under the state's supervision from enforcing the state's abortion-ban statute.
The appeals panel affirmed what Nessel has previously said – she can supervise, consult and advise county prosecutors, but they maintain discretion over charging decisions in their respective counties.
The Republican-led Legislature, who have intervened in the case, are appealing Gleicher's order. On Friday, Gleicher denied their request to recuse herself.
On Sunday, Nessel told MSNBC's Jonathan Capehart that abortion rights in Michigan are "hanging on by a thread."
"The thread has torn," she tweeted Monday after the appeals court's opinion was released.
Kevin McFatridge, chief operating officer of the Michigan State Medical Society, said the organization continues to oppose the "potential criminalization of physicians and their patients in making health care decisions."
