Michigan county prosecutors given green light to enforce state abortion ban

The Michigan Court of Appeals on Monday ruled the injunction against enforcing the state’s 1931 ban on abortion doesn’t apply to county prosecutors.

Judge Stephen Borrello signed the ruling, stating the injunction only applies to courts specifically under the supervision of Attorney General Dana Nessel.

"Our Supreme Court has determined that county prosecutors are 'clearly local officials elected locally and paid by the local government,'" Borrello wrote. County prosecutors are not state officials and do not answer to the state’s attorney general "because their authority is limited to their respective counties."

In late May, Michigan 2nd District of Court of Appeals Judge Elizabeth Gleicher issued a preliminary injunction blocking enforcement of the 1931 ban in Michigan. In June, the U.S. Supreme Court’s Dobbs decision overturned legalized abortion under the 1973 Roe v. Wade ruling.

Gleicher’s ruling was challenged as biased, because of her advocacy in support of abortion and longstanding financial support of Planned Parenthood. Additionally, Gleicher served as pro bono legal counsel for the ACLU in a 1997 abortion-related case. However, Gleicher refused to recuse herself, claiming she could remain impartial. Last week, she denied an appeal to reverse her injunction.

“Instead of complying with the court rule in a reasonable fashion, intervening defendants waited to file this motion until after I had granted their motion for intervention and denied their motion for reconsideration of my order granting a preliminary injunction (on June 15, 2022),” Gleicher wrote in her rejection of the appeal last Friday. “Intervening defendants seek to excuse their delay by claiming to have only recently ‘discovered’ my contributions to the campaigns of Governor Whitmer and Attorney General Nessel. Their excuse is not credible. My contributions have been a matter of public record for more than three years. As discussed above and below, these contributions were ethically proper, and do not call into question my objectivity in this case or impair the intervening defendants’ rights to a fair tribunal. Further, intervening defendants were aware of the other grounds they cite for my disqualification more than a month ago and should have filed their motion by the end of June, at the latest.”

Gleicher issued her initial decision granting the preliminary injunction in a case filed by Planned Parenthood and the American Civil Liberties Union against the attorney general. Nessel, for her part, had declared repeatedly she would not enforce the 1931 law should Roe v. Wade be overturned.

Nessel issued a defiant statement after Borrello's ruling.

“Today’s ruling will not deter my efforts to continue to fight for Michigan women," she said. "The legal battle continues on multiple fronts and those of us who value access to reproductive health care and respect a women’s right to make the best decisions for herself, according to her own moral, cultural and religious beliefs are not backing down. While I respect the ruling from the court, it is by no means the final say on this issue in Michigan.”

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