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In the days since the U.S. Supreme Court overturned Roe v. Wade, officials in Michigan have said repeatedly that abortion remains legal and clinics are open, after a temporary court injunction blocked a nearly century-old ban that was unenforceable for nearly 50 years because of Roe.

But two Republican county prosecutors said they would consider pursuing criminal charges against doctors under the statute, which contains no exceptions for rape or incest. An attorney representing Kent County Prosecutor Chris Becker and Jackson County Prosecutor Jerard Jarzynka told The Washington Post his clients do not believe the injunction applies to them.

“If a case is brought in front of our clients, at least, they’ve indicated to us and the media that they’ll look at it,” said David Kallman, a lawyer with the conservative Great Lakes Justice Center. “And if the facts are there, they’ll charge, because the law is the law and it’s in effect.”

The battle brewing over the suddenly relevant statute illustrates the uncertainty and confusion unleashed by Friday’s Supreme Court decision. The ruling erased in a day a right that had existed since 1973 and led to a patchwork of laws, many of them ensnared in fierce legal and political fights.

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Michigan is among seven states with a pre-Roe abortion ban that was never repealed, according to the nonprofit Guttmacher Institute, which researches and supports reproductive rights. It is one of two, along with Wisconsin, that has a Democratic governor determined to see the old legislation invalidated and a Republican-controlled legislature that wants it enforced. In both states, most residents favor abortion rights.

Michigan’s law, passed in 1931 and reminiscent of its 1846 predecessor, makes providing an abortion a felony except in cases where ending a pregnancy is deemed necessary to save the life of the pregnant woman.

For now, abortions continue in Jackson County, located in the southeastern part of the state, and Kent County, which is on the west side and includes the state’s second-largest city, Grand Rapids. A state body, the Michigan Department of Licensing and Regulatory Affairs, told doctors in guidance issued Monday that its position is abortion remains legal because of the injunction, Michigan Radio reported. The GOP-controlled state legislature has also seemingly interpreted the injunction as applying statewide.

Yet in a sign of confusion over the status of the law, the state’s largest health-care system, BHSH System, said Friday said it would follow the 1931 statue and terminate pregnancies only when necessary to preserve the life of the woman, the Detroit Free Press reported. Democratic lawmakers condemned the decision and it reversed course a day later, announcing in an online statement that medically necessary abortion procedures would continue.

“At present, the current legal landscape regarding abortion in our state is unclear and uncertain,” BHSH System said in the statement. “We are aware of the 1931 Michigan law. However, given the uncertainties and confusion surrounding its enforcement, until there is clarity, we will continue our practice of providing abortions when medically necessary. We continue to believe that these decisions are both personal and private and best made between a woman and her physician.”

BHSH, created through a merger of Detroit-area Beaumont Health and Kent County-based Spectrum Health, offers no elective abortions. Across the system’s hospitals in 2021, its providers performed about 60 medically necessary abortions that required hospital-level care. The system’s statement described the current landscape as “challenging” for physicians and patients and urged the state’s courts to “bring clarity as quickly as possible.”

The legal fight over abortion in Michigan geared up during the spring, in anticipation that the Supreme Court’s new conservative majority would scale back or overturn Roe.

In April, Gov. Gretchen Whitmer filed a lawsuit against prosecutors in counties with abortion clinics in a bid to prevent enforcement of the 1931 ban and to get the state’s Supreme Court to determine whether abortion is protected under Michigan’s constitution. Seven Democratic prosecutors said they supported the governor’s actions and would not criminalize abortion in their jurisdictions.

Planned Parenthood of Michigan filed a second lawsuit challenging the ban, naming the state’s Democratic attorney general, Dana Nessel, as a defendant. On May 17, a court of claims judge issued the injunction temporarily preventing Nessel and prosecutors under her supervision from enforcing it.

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Kallman and his clients — the Kent and Jackson county prosecutors — are seeking to have the injunction overturned as part of an appeal alongside Right to Life of Michigan and the Michigan Catholic Conference. He asserted that the case is “a sham” because Nessel and Planned Parenthood are in agreement on abortion, and he argued that the injunction does not apply to the two prosecutors because they are their own elected offices with authority to enforce laws.

Neither has been approached with an abortion case, Kallman said, but both have told him, “I’m not going to be afraid to bring the charges.”

“They’re not shying away from doing it, but they’re not out running around trying to find a case, either,” Kallman said. “But look, if I were a doctor doing abortions in some of these counties other than the big counties in Michigan, I’d be thinking twice about whether to do an abortion. I’d be thinking twice about doing it unless it’s to save the life of the mother.”

Yet Nessel’s office has countered that abortion remains legal under the injunction. The Republican-controlled state legislature has also read the injunction as applying across the state, saying in court filings that the judge’s decision has left “the Attorney General and all county prosecutors” unable to enforce the ban.

Planned Parenthood of Michigan spokeswoman Ashlea Phenicie said in a statement to The Post that “there is no legal basis for county prosecutors to believe that the statewide injunction does not enjoin them.” She added that prosecutors who disregard it could face contempt-of-court proceedings.

Whitmer has urged the state Supreme Court to take up her lawsuit on whether the state constitution protects abortion rights. In court paperwork, the governor cited BHSH’s changing policies and the Republican prosecutors’ assertions that they could prosecute abortions, with which she said she firmly disagreed.

The court should provide clarity immediately, she wrote, noting that the fall of Roe had “already resulted in uncertainty, confusion and efforts to contract abortion access in Michigan, notwithstanding the preliminary injunction.”

November’s election could also reshape the state of abortion in Michigan. Whitmer and Nessel are up for reelection, with antiabortion candidates running on the GOP side. And a group called Reproductive Freedom for All is mounting a petition drive to try to enshrine abortion rights in the state constitution.

If enough signatures are collected by July 11, the question will go on the ballot.



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