Abortion Is Legal in This State. That's Not Stopping These Rogue Prosecutors

MACOMB COUNTY, Michigan — Renee Chelian was on the first vacation she’d taken since Roe’s reversal when she learned one of the abortion clinics she operates was suddenly under legal threat. First, Chelian called her attorneys. Next, a conference call with her doctors. “The patients are terrified, they don’t know what to do — are they going to get their abortions today?” the doctors relayed. Terrified, too, were the clinic staff, concerned they would be charged for providing abortions under a 91-year-old law that hadn’t been enforced for nearly 50 years.

Abortion rights have been protected in Michigan at the state level since April, when a lawsuit from Planned Parenthood, anticipating the fall of Roe, stalled enforcement of a 1931 state law that banned the practice. The three locations of Northland Family Planning Center, Chelian’s operation, hummed along under that decision, assuring visitors to its homepage that “abortion is still legal in Michigan under a court order.” But on August 1, a Michigan court ruled that injunction did not apply to county prosecutors. And one of Northland’s locations sat in a brick building on the western edge of Macomb County, where the Republican prosecutor, Peter Lucido, had for months been promising to charge providers with the felonies that law carried. “All laws of the state that have not been repealed will be enforced by the Macomb County Prosecutor’s Office,” he wrote on Facebook the evening Roe fell.

By noon that day, Chelian closed Northland’s Macomb County location and rescheduled as many patients as possible at her other clinics outside the county. “We’ll go wherever we’re needed to go,” the doctors promised — but not before they’d spoken with Chelian’s lawyers, to be reasonably sure they still wouldn’t be prosecuted for offering services elsewhere. The doctors returned to a roomful of patients, anxiously waiting, to explain what was happening. Some of those being turned away didn’t understand — abortion was still legal in Michigan, wasn’t it?

For the time being, anyway. In addition to the lawsuit that stalled the 1931 ban, Gov. Gretchen Whitmer has sued the local prosecutors in counties where abortion clinics operate to stop them from enforcing it, too. But in Macomb and at least two other counties in Michigan, prosecutors have said they’d enforce the 1931 law that laid dormant while Roe was the law of the land. Attorney General Dana Nessel scrambled to get a judge to issue a pause on the ruling, the official fate of which falls to a trial that begins Wednesday.

Chelian reopened her Macomb location once the pause was issued and has seen patients as usual since, but “we don’t know what will happen in court this week,” she says. She doesn’t know because the rollback of nearly 50 years of federal abortion rights has left a patchwork of protections in it place, subject to the whims of shifting legal rulings and emboldened local officials. In this tenuous arrangement, legal access to abortions could depend not only on the state, but the county, paralyzing providers and patients in the process.

Lucido has held uncompromising anti-abortion stances since his tenure in the Michigan state legislature. His 2014 campaign platform vowed to ban abortion with no exceptions for rape, incest, or the life of the mother. Lucido has often declined to offer his personal views on abortion, but in response to such questions has noted he’s a lifelong Catholic. (His Facebook announcement on the day of the Dobbs decision alerted that “ANY ATTACKS on churches or crisis pregnancy centers will be prosecuted to the fullest extent of the law” — without extending the same courtesy to abortion clinics.)

Lucido first revealed how he’d approach a post-Roe Michigan after Whitmer filed her lawsuit in early April. “We are not able to pick and choose laws that are on the books,” he told reporters as he promised to prosecute any criminal complaints against abortion clinics. He doubled down during a press conference the following month. “If it’s on the books, I took an oath of office to uphold the law,” he said.

He began preparing his office for that undertaking once a draft of Dobbs vs. Jackson Women’s Health Center decision leaked in early May. Lucido asked the Macomb County Board of Commissioners for funding to defend himself against Whitmer’s lawsuit that targets county prosecutors. Should he prevail against her, he could move forward with prosecutions of abortion providers. He received $10,000 to cover legal fees and received it (though the board denied his request this week for an additional $47,000 in defense funds).

Lucido’s justification for prosecuting abortion clinics cites the familiar Republican adherence to “law and order,” a rationale shared by prosecutors in Kent and Jackson Counties, who brought the lawsuit that determined prosecutors were not subject to the injunction against the 1931 ban. Indeed, even Republicans uncomfortable with the idea of punishing providers under the nearly century-old law get squeamish at the prospect of not enforcing laws. “The 1931 law is too extreme,” says Michelle Smith, a Macomb County GOP candidate for state house. “I think we should just enforce a better law,” she says. Matt DePerno, the Republican nominee for attorney general, has said he would enforce the pre-Roe ban if he wins in November. “I would expect county prosecutors to enforce the law,” he says. “They take an oath.”

“That’s pure rubbish,” Karen McDonald, a Democratic prosecutor in Oakland County, says of DePerno’s argument, noting the preponderance of obsolete laws that remain on the books. “If that’s true, I’d have to prosecute infidelity.”

Legal experts believe that Michigan abortion providers should feel relatively secure in their rights, at least leading to November elections, when voters will cast ballots to preserve abortion as a right in the state constitution. “I could see judges wanting to stand down and preserve the status quo until the voters decide,” says Barbara McQuade, a former U.S. attorney in Michigan. Even if the court rules that prosecutors can enforce the pre-Roe ban, state or local law enforcement would have to present prosecutors with evidence of a crime which, so far, they’ve declined to do.

But the confusion surrounding what’s legal and not is the point, Michigan abortion providers say. The legal limbo, down to the county level, paralyzes providers as an ever-growing number of abortion seekers flooding into Michigan from surrounding states that have outlawed the practice. “It’s a feature, not a bug, and it has a chilling effect,” says Laura Owens, a gynecologist and obstetrician working in Michigan. And with the uncertainty of court rulings comes the “roller coaster” ever-shifting responsibilities and capacity, even for providers who live in counties with Democratic prosecutors, explains an abortion provider in Wayne County, who goes by Sam to protect her identity. “If there’s a question about whether Renee’s going to be open, can we handle the influx of her patients?” she says.

It’s remarkable that Chelian would speak with me at all; other clinics in Macomb declined my requests for interviews, citing safety concerns and the possibility of incriminating themselves if the courts don’t take their side. As the judge takes up the case on Wednesday, Chelian expects to be tethered to her phone as she awaits the official ruling. “If we don’t win, we will not be seeing patients in a county where our doctors would risk prosecution,” Chelian explains. “I believe others will follow suit.”

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