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Michigan judge blocks prosecutors from enforcing 1931 abortion ban, belittles pro-life testimony

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JEFF KOWALSKY/AFP via Getty Images

A Michigan judge has blocked state prosecutors from enforcing a nearly 100-year-old abortion ban that would have gone back into effect after the Supreme Court overturned Roe v. Wade.

In a decision siding with Democratic Gov. Gretchen Whitmer, Judge Jacob Cunningham on Friday issued a temporary restraining order following a two-day evidentiary hearing. He said the people of Michigan "would suffer irreparable harm if the injunction is not issued."

Cunningham ruled that criminalizing abortion "squarely contradicts our medical professionals duties, oaths, and a standard of medical care."

"The variable danger of death, serious injury, infertility, abuse, forced pregnancy, poverty, etc. — all testified at the evidentiary hearing — all stem from imposition of the statute ... The harm to the body of women and people capable of pregnancy in not issuing the injunction could not be more real, clear, present and dangerous to the court," Cunningham said.

The abortion ban — a 1931 law that remained dormant until the Supreme Court ruled in its Dobbs decision that states may regulate abortion — makes performing an abortion a felony punishable by up to four years in prison. The law is opposed by state Democratic leaders and county prosecutors who have promised they would not enforce the law were it to go back into effect.

But Republican prosecutors in Kent, Jackson, and Macomb Counties said they would consider bringing criminal charges against abortion providers who violate the law. Democrats went to court seeking to block prosecutors from enforcing the law until the issue is resolved by either the state Supreme Court or by voters adopting a proposed constitutional amendment protecting abortion rights in November.

"This court finds it is overwhelmingly in the public's interest to let the people of the great state of Michigan decide this matter at the ballot box, assuming the constitutional amendment initiative is on the ballot on Nov. 8," Cunningham said Friday.

Reading his decision from the bench, Cunningham said he found the state's pro-abortion witnesses "extremely credible." However, he dismissed the testimony of pro-life witnesses called by the defense, Dr. Priscilla Coleman and Dr. Gianina Cazan-London.

Dr. Coleman, an expert in psychology of abortion, decision-making, and mental health outcomes, testified about her research and publications on the mental health impact to women who have abortions, WJBK reported.

"On cross-examination, in the court's eyes, Dr. Coleman's credibility was seriously called into question and her statistics and conclusions of her testimony revealed unhelpful and biased information for the court's instant inquiry," Cunningham said. "Notable was Dr. Coleman's indication that although there were 'very few' psychological studies and instances of rape or incest, resulting in birth, she nevertheless concluded - stunningly - that only 20% of those mothers harbor resentment towards that child."

He dismissed Dr. Coleman's testimony as "not credible" and afforded it no weight.

Likewise, he said Dr. Cazan-London, a pro-life OB/GYN, had a "personal bias" because she cares for pregnant women, specializes in high-risk pregnancies, and once assisted in an abortion procedure.

"On cross-examination, Dr. Kazan London was significantly discredited in the court's mind regarding a personal bias in this area. The court also observed her demeanor significantly changed, including the tenor of her voice on cross-examination vs on direct examination," he said.

Cunningham also condemned Dr. Cazan-London for her answer to a question about pregnancy that is a product of rape.

"Notable to the court was the inability for Dr. Kazan London to acknowledge, from the court's perspective, the impact of rape and subsequent pregnancy and a victim testifying that all births - even if the result of rape - are simply 'part of womanhood,'" he said, declaring her testimony carried no weight.

David Kallman, an attorney representing two Republican county prosecutors, said he will appeal the decision.

“The judge ignored all of the clear legal errors and problems in this case, it appears to me, simply because the issue is abortion,” Kallman told the Associated Press after the hearing.

Democratic state leaders celebrated his decision.

“I am grateful for this ruling that will protect women and ensure nurses and doctors can keep caring for their patients without fear of prosecution. I am particularly grateful to Attorney General Dana Nessel and her team for their work on behalf of the state," Whitmer said in a statement.

Michigan Attorney General Dana Nessel also released a statement calling abortion "critical healthcare."

"Uncertainty around the law has a chilling effect on the conduct of doctors and therefore limits access to care for Michigan women. Maintaining access to reproductive healthcare is absolutely necessary for the health and well-being of women and it is our duty to ensure that access for the roughly two million women of reproductive age who call Michigan home," Nessel said.

She continued, "Absent this preliminary injunction, physicians face a very real threat of prosecution depending on where they practice. There is no doubt that the statue criminalizing abortion is in direct conflict with the ability of the medical community to provide the standard of care consistent with their education, training, expertise and oath.

Women do not need to be protected from themselves by denying them the ability to make personal medical decisions consistent with their own moral, cultural, religious and ethical beliefs. Restricting access to reproductive healthcare jeopardizes the ability of physicians to deliver appropriate care and it denies women the right to decide the most intimate issues regarding their health, their bodies and their lives.”

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