Confusion roiled Michigan for days as abortion rights changed hour to hour

ANN ARBOR, Mich. — When Dr. Audrey Lance, an OB-GYN at Northland Family Planning Centers in Metro Detroit, got to work Monday morning, abortion was legal in the state of Michigan.

By noon, it wasn't.

Then by 5 p.m., it was legal again, with at least some certainty it would probably stay that way, at least until a hearing Wednesday. At that hearing, a judge ruled the temporary restraining order preventing county prosecutors from criminally charging abortion providers, would remain in place ... at last until another hearing in two weeks.

"It's confusing even to lawyers, let alone a layperson who is just trying to figure out if their appointment is still booked or not," Lance said Monday, speaking by phone.

This is the chaotic reality of abortion rights in one of the few Midwestern states that didn't enforce new restrictions after the Supreme Court overturned Roe v. Wade in late June. Since then, waves of abortion patients fleeing regulations in Ohio, Wisconsin, and even as far away as Texas have traveled to Michigan. Planned Parenthood of Michigan says the number of of out-of-state abortion patients coming to its clinics have tripled since the court ruling. And providers say those patients are increasingly desperate.

One of Lance's recent patients was a "young girl" who drove seven hours with her mother from Milwaukee for her appointment, then turned around and drove back home.

When asked if she could provide the girl's age, Lance hesitated, finally saying: "Let's just say she was a minor."

Another patient was so frantic that when Lance was going over a routine list of possible medical complications from abortion, the patient cut her off.

"She said, 'It's fine, I don't care what the risks are. You could shoot me in my uterus, and that would be fine. I just cannot have another child right now.'"

On Monday, telling patients: You may need to go to yet another state

The waitlists at Northland Family Planning Centers have been growing, and Monday morning was as busy as ever. Patients were in the middle of ultrasounds and counseling sessions when Lance got the call from her boss.

"We had to immediately halt kind of what we were doing," Lance said.

That's because a new court ruling had just been issued. In April, Planned Parenthood of Michigan filed a lawsuit seeking to permanently block enforcement of the state's 1931 abortion ban, which criminalizes abortion even in the cases of rape or incest. The ban had been unenforceable under Roe.

In May, a Court of Claims judge issued a preliminary injunction, preventing the ban from being enforced by Michigan's attorney general and local county prosecutors.

But on Monday, the Court of Appeals ruled that the preliminary injunction didn't apply to local county prosecutors — several of whom have said they would prosecute abortion providers under the 1931 law.

"The Court of Appeals reaffirmed the independent authority of local prosecutors and upheld Michigan's Constitution," said attorney David Kallman, who represents Jackson County Prosecutor Jerard Jarzynka and Kent County Prosecutor Christopher Becker, both of whom filed a legal challenge to the preliminary injunction. "Michigan's abortion statute is immediately in effect and enforceable by local prosecutors."

While there was some debate about when the Court of Appeals' ruling would go into effect, the impact on healthcare providers was immediate.

"[I] felt a total gut punch, and in real time [was] trying to figure out what this means for the patients that are literally sitting in my clinic," Lance said.

Many of those patients had already traveled for hours to get there.

"We [told them we] wanted to do our very best to take care of them, but that we had to stop for the time being to figure out what we were legally going to be able to do."

Similar scenes were playing out at the University of Michigan's health system, which primarily performs abortions for patients with complex medical cases who may require hospitalization, says professor Dr. Lisa Harris, an OB-GYN.

"Everyone that I've seen from out of state for abortion care in the past three weeks are people who had an appointment scheduled the day that the ... decision was handed down, or the week or two after that, and then were unable to get that care because abortion then became illegal in their state," Harris said.

That includes one patient whose son had recently been diagnosed with a malignant tumor that would require chemotherapy and radiation.

"And she couldn't continue the pregnancy and care for her son with all his medical needs," Harris said. "And [she] had her appointment in another state canceled at the last minute. It took her a couple of weeks to find care with us in Michigan, and ultimately she had her abortion procedure the day before her child was about to have major cancer surgery."

Planned Parenthood of Michigan announced it would continue to offer abortions, citing Michigan court rules that say "the Michigan Court of Appeals ruling cannot take effect during the 21-day appeal window."

But there was enough uncertainty that by mid-morning, Harris said the University of Michigan's clinicians had to tell patients to make other plans — again.

"We are telling them that [Tuesday] or Wednesday, when their procedures would happen, we may not actually be legally able to provide that care," Harris said Monday. "And we understand how crushing that likely feels to them. And we are going to ask them to begin looking for care out of state, likely in Illinois."

Confusion, uncertainty as legal status of abortion flip flops

By late Monday afternoon, Gov. Gretchen Whitmer had asked the Oakland County Circuit Court to intervene.

"Michiganders will suffer an irreparable injury if Defendants are permitted to enforce ... a near-total ban on abortion that violates the Michigan Constitution," Whitmer's filing said.

Around 5 p.m., Oakland County Circuit Court Judge Jacob Cunningham issued a temporary restraining order, once again blocking enforcement of the 1931 ban "until further Order of the Court." Cunningham also ordered Whitmer's legal team, as well as attorneys representing local county prosecutors, to convene for a hearing Wednesday.

Still, on Monday evening, Lance said they'd decided to stop offering abortion care for now at their Sterling Heights clinic, because it's in Macomb County.

"And the Macomb county prosecutor has clearly stated he wants to prosecute [abortion providers under the 1931 ban,]" she said. "So we thought it would be the safest thing not to see patients there, because this was still so unclear."

Meanwhile, patients were calling, uncertain about whether they still had appointments.

"Of course they're very upset at the situation," Lance said.

On Tuesday, the University of Michigan announced it would continue to offer abortion care, "support our employees and learners, which includes providing legal defense for those who might become parties in civil or criminal legal proceedings by virtue of their good-faith efforts to perform their duties."

A series of high-stakes court battles over abortion

In a tense hearing Wednesday afternoon, attorneys for Whitmer, as well as the county prosecutors who want to enforce the 1931 abortion ban, argued over whether Cunningham's temporary restraining order should remain in effect.

Whitmer's attorneys cited the ongoing confusion over the legal status of abortion in the state, saying that if even only a few county prosecutors enforced the 1931 abortion ban, it would have an immediate "chilling effect" on abortion providers throughout Michigan.

But Kallman said the request for the temporary restraining order was an overreach by the governor, whom Kallman accused of essentially asking the judge to create a constitutional right that "doesn't exist."

Washtenaw County Prosecutor Eli Savit, who opposes the state abortion ban, told the judge that if the temporary restraining order was lifted, county prosecutors would essentially be in charge of determining when abortions are valid to "save the life of the mother," since that's the only exemption in the ban.

"These are emergency decisions that doctors have to make in the moment," Savit told the court. "And to ask them what their county prosecutor, or a neighboring county prosecutor might do, puts doctors and patients in an untenable position. And renders it quite likely that lifesaving care [won't happen.]

"We simply ask that the status quo that has existed for 50 years in this state continue, and we not see the type of chaos that we saw on Monday," Savit said.

"Look, you want to talk about public interest and harm? There's 1,700 lives per month being aborted," Kallman told the court minutes later. "There's a harm, of all those lives being lost. And that's a part of the balance the court should look at."

There were 30,074 abortions performed in the Michigan last year, according to the state health department. That's roughly a 1% increase from the prior year, but nearly a 40% decrease from 1987, the year with the largest number of induced abortions.

Ultimately, Judge Cunningham ruled to leave the temporary restraining order in place until a second hearing later this month to determine whether a new injunction about enforcing the 1931 ban should be issued.

What's important for patients to understand, Dr. Harris said, is that abortion is still legal and available in Michigan.

"But if people don't know that, or have doubts about it, or are afraid of driving seven hours only to be turned away, which is what happened to some patients on Monday, [then] yes, they will probably think twice, or not think Michigan is going to be a welcoming place for their care," she said.

All of this uncertainty could be cleared up if the Michigan Supreme Court decides to step in, as Whitmer and Planned Parenthood of Michigan have requested. And in November, voters may also get decide if Michigan should have a constitutional amendment protecting abortion. Until then, abortion rights in the state will hang on the next court ruling — whatever that may be.

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