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A 1931 law criminalizing abortion in Michigan is unconstitutional, a judge rules

Published September 7, 2022 at 5:27 PM EDT

FILE - Abortion rights protesters attend a rally outside the state Capitol in Lansing, Mich., on June 24, 2022, following the United States Supreme Court's decision to overturn Roe v. Wade. Judge Elizabeth Gleicher, of the Court of Claims, on Wednesday, Sept. 7, 2022, struck down Michigan's 1931 anti-abortion law, months after suspending it. Judge Gleicher said the law, long dormant before U.S. Supreme Court overturned Roe v. Wade in June, violates the Michigan Constitution. (AP Photo/Paul Sancya, File)

Updated September 7, 2022 at 7:31 PM ET

ANN ARBOR, Mich. — Enforcement of Michigan's 1931 abortion ban was blocked Wednesday by a judge who replaced her temporary order with a permanent injunction.

Michigan Court of Claims Judge Elizabeth Gleicher ruled the Michigan Constitution's due process clause is expansive enough to cover reproductive rights.

"The Michigan Constitution protects the right of all pregnant people to make autonomous health decisions," she wrote, and later: "Exercising the right to bodily integrity means exercising the right to determine when in her life a woman will be best prepared physically, emotionally and financially to be a mother."

Gleicher's initial temporary order pre-dated the U.S. Supreme Court's Dobbs v. Jackson Women's Health Organization ruling in June.

Dr. Sarah Wallett, the chief medical officer for Planned Parenthood of Michigan, says this means abortion rights are protected while there's still a lot of litigation pending.

"But this does help reassure providers and patients who are really worried that that might not always be the case in Michigan," she told the Michigan Public Radio Network.

Michigan's dormant abortion law would threaten abortion providers with felony charges.

Gleicher's opinion was somewhat technical. It did not directly bar prosecutors from filing charges against abortion providers. Instead, she instructed Michigan Attorney General Dana Nessel to inform prosecutors that abortion rights remain protected. Nessel has already said she won't file charges under the 1931 law.

The distinction is meaningless, according to attorney David Kallman, who represents county prosecutors who say they are allowed to file criminal charges under the 1931 law.

"Unbelievable," he said. "Talk about a shift and a change in our constitutional form of government. I didn't realize the state of Michigan now, according to Judge Gleicher, controls and runs all 83 county prosecutors' offices in this state."

This is one of several abortion-related legal cases in play in Michigan. It could join at least three decisions that have been appealed to the Michigan Supreme Court. There's also a separate case that seeks to put an abortion rights amendment on the November ballot.

The court is expected to rule this week on a challenge to the petition campaign, which gathered nearly 750,000 signatures — a record — in an effort to put a proposed reproductive rights amendment on the November ballot.