GRAND RAPIDS, Mich. (WOOD) — The Kent County prosecutor said he does not feel he could ignore Michigan’s 1931 ban on performing abortions but also acknowledged he is “await(ing) decisions” in pending legal challenges to the ban.
“I have always held that it would be improper for me to pick and choose the laws I wish to enforce…” Prosecutor Chris Becker said in a Monday statement.
Some prosecutors, mostly from southeastern Michigan, have said they would not pursue abortion cases. Michigan Attorney General Dana Nessel has long said she wouldn’t prosecute such cases and added on Friday she wouldn’t go after any doctors’ licenses for performing abortions.
“I cannot join them in this position,” Becker wrote. “I do not believe it is proper for me to simply ignore a law, any law, that was passed by the Michigan Legislature and signed by the Governor.”
On Friday, the U.S. Supreme Court overturned the landmark 1973 Roe v. Wade decision that legalized abortion nationwide. Now, states can again choose to ban it. Michigan has such a ban on the books, which outlaws doctors performing abortions under most circumstances, but that ban is currently in legal limbo. A state judge put a hold on enforcement while a challenge from Planned Parenthood works its way through the state court system. Gov. Gretchen Whitmer, a Democrat, has challenged the law, too.
Becker recognized that those cases are pending.
“…There will be more decisions in Michigan courts in the coming weeks,” he wrote. “I await decisions in those cases to guide my actions.”
He also referenced pending legislative and ballot action — a Republican state representative from Three Rivers has introduced a bill to the Legislature that would strengthen Michigan’s abortion ban, while there is also a petition being circulated to amend the Michigan Constitution to enshrine reproductive rights, including to an abortion.
“I will abide by whatever laws are passed by the legislature or by voter initiative down the road,” Becker wrote. “That is the proper role of a prosecutor.
“At this time, however, there is a validly passed statue which has been upheld by the Court of Appeals in the past and I will not turn a blind eye and ignore it,” he continued. “To do so in my opinion would be improper.”
David Kallman, senior legal counsel for the Great Lakes Justice Center, who represents Becker and the Jackson County prosecutor, told News 8 that his clients “don’t believe they’re bound in any way by that injunction” and he argued the attorney general’s office is the only entity it covers.
“In terms of the injunction itself, our clients are not parties to that case. And they do not work for the attorney general. They are not employees of the attorney general. They are not agents or representatives of the AG whatsoever,” Kallman said.
The injunction orders that “Defendant (the attorney general) and anyone acting under defendant’s control or supervision … are hereby enjoined during the pendency from this action from enforcing” the abortion ban. The legal question seems to be what “supervision” entails.
“What they’re trying to do is take a statute that says the attorney general in general has some supervisory authority over prosecutors around the state, just in general, and take a statute that’s never been used in the way they’re trying to use it, and say, ‘Oh, that means the attorney controls all the prosecutors in the state and can tell them what to do,'” Kallman said. “That is a flat-out lie. That is not true. Every county prosecutor is a separately elected official. … Their choice to either charge or not charge a crime against a person is entirely up to them. The attorney general can’t make them do anything.”
“And so they’re not out looking for cases but if a police agency or an investigating agency brings a case to them where a doctor has performed an abortion that is otherwise not to save the life of the mother, which is the exception in the law, then they’ll look at the case at that point, look at the facts and make a charging decision,” Kallman added.
But attorney Anastase Markou with Levine & Levine says the Court of Claims’ decision “includes the attorney general and any agency or attorneys that the attorney general supervises.”
“The attorney general is a constitutionally-mandated position in the state of Michigan. One of their roles is to supervise prosecuting attorneys throughout the state of Michigan. So in one way, the Court of Claims’ restraining order can be applied to county prosecutors,” Markou explained. “If a judge rules that a law is not enforceable, that’s what it means.”
However, Markou said Kallman and his clients have a case, albeit not a strong one, when it comes to their argument that the county prosecutors are not explicitly named as parties in the injunction alongside the attorney general.
Kallman said he was ready and willing to fight the point in court.
With more guidance to come from the courts out of these cases, Markou said it’s a good idea for prosecutors to air on the side of caution.
“Prosecutors, if they choose to enforce this, are really running the risk of potential lawsuits, civil rights and otherwise, if they choose to enforce something that may be found to be unenforceable in the near future,” Markou explained.
Kallman and his clients are part of an appeal by Right to Life of Michigan and the Michigan Catholic Conference to get the injunction overturned and Planned Parenthood’s legal challenge tossed, saying it’s a “fake lawsuit” because Nessel had already said she wouldn’t pursue abortion cases.
Both Becker and Kallman stressed the law applies to doctors who perform abortions, not women who seek or get them.
—News 8’s David Horak contributed to this report.