Gov. Gretchen Whitmer will not have to testify at a hearing Wednesday concerning an order barring county prosecutors from enforcing the state’s 1931 abortion ban, a Tuesday Court of Appeals ruling assures.
County prosecutors who wish to act under the statute subpoenaed Whitmer to testify at the hearing, where lawyers will present cases for and against a preliminary injunction, which would continue the order for the duration of Whitmer’s lawsuit against the prosecutors.
Oakland County Circuit Judge Jacob Cunningham quashed the subpoena and David Kallman, a Lansing lawyer representing prosecutors Jerard Jarzynka of Jackson County and Christopher Becker of Kent County, appealed to the higher court. Becker and Jarzynka previously said they would charge providers under the law, which makes procuring a miscarriage illegal except to save a mother’s life.
The motion did not persuade the Court of Appeals of the “existence of manifest error requiring reversal,” reads the brief three-sentence order.
“I guess the governor is above the law,” Kallman said Tuesday. “I don’t know what the governor is afraid of. I mean she doesn’t have any problem doing press conferences and doing media interviews about what she thinks on this case. So, why she wouldn’t come to court to back up her claims, I don’t know. I guess she should be asked.”
He called the decisions ridiculous. “I just have never seen this, where a judge shields a party, a plaintiff whose requesting an injunction, from having to come to court and backup their request. In 40 years of doing this, I have never seen anything like it.”
Kallman called it a “sad day for the rule of law.”
“Gov. Whitmer filed this suit because politicians have no business telling women what they can and cannot do with their bodies and lives,” the governor’s office said in a statement.
She and her representatives called the 1931 law extreme and dangerous.
“These prosecutors have tried to interject politics at every turn, and this baseless subpoena at taxpayer expense is just another example of that. We are glad the judges saw through it. We look forward to making our case (Wednesday) to uphold the constitutional rights of Michiganders, preserve access to safe, legal abortion care in Michigan, and prevent our nurses and doctors from being locked up for simply doing their jobs,” continued the statement.
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In answering Kallman’s motion, Whitmer’s lawyers argued Whitmer did not sue in her individual capacity. Her suit is authorized by the state constitution and brought on behalf of the state to “enforce compliance with constitutional mandates and restrain violations of constitutional rights.”
In April, Whitmer sued 13 county prosecutors, law enforcement officers in counties with abortion providers. She asks the court to recognize a constitutional right to abortion under the Due Process Clause of the state constitution, which she argues provides a right to privacy and bodily autonomy. Further, she contends the Equal Protection Clause denies women equal rights by reinforcing antiquated notions of women’s role in society.
In a separate, but related lawsuit, Planned Parenthood of Michigan sued the attorney general in the Court of Claims, where Judge Elizabeth Gleicher granted an injunction banning the enforcement of Michigan’s abortion ban, given teeth for the first time in about 50 years when the U.S. Supreme Court overturned Roe v. Wade.
Becker and Jarzynka appealed and the Court of Appeals earlier this month concluded county prosecutors are local, not state, officials and the jurisdiction of the Court of Claims does not extend to them.
At Whitmer’s request and on the same day, Cunningham issued a temporary restraining order, saying the prosecutors must refrain from enforcing the law.
The Wednesday hearing, scheduled for 2 p.m., is expected to continue into Thursday. Cunningham will hear testimony from witnesses other than Whitmer and decide whether to issue a preliminary injunction, longer lasting than a temporary restraining order.
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