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Michigan Attorney General Cox Files Brief on Partial Birth Abortion Ban in 6th Circuit Court of Appeals

24 April 2006

Attorney General Mike Cox announced today that he has filed an appellate reply brief in the US 6th Circuit Court of Appeals challenging the decision issued in September by the Eastern District Court that declared Michigan's statute prohibiting partial birth abortion unconstitutional.

"In 2005, the Michigan Legislature passed a law to ban partial birth abortion, and I am asking the federal appellate court to uphold the will of the people," said Cox.

In the case, Northland Family Planning, et al v Cox, et al, plaintiffs requested a declaration that the Legal Birth Definition Act (LBDA), MCL 333.1081, is unconstitutional and they sought a preliminary and permanent injunction. The District Court held the LBDA unconstitutional in September 2005.

On April 20, 2006, the Attorney General filed his reply brief in support of his appeal of the District Court's decision. The Attorney General's first Appellate brief in the case was filed on February 27. Mr. Cox explained, "A year ago I issued an opinion that gave effect to constitutional application of this law; that is, simply, that the law should take effect. I am asking the 6th Circuit Court of Appeals to do the same."

In summary, the three main arguments made by the Attorney General on appeal are that:

(1) The District Court erred in holding the LBDA unconstitutional, because under federal and Michigan rules of statutory construction, it should be construed in a constitutional manner as applying to only the partial birth abortion (D&X) procedure, with an adequate woman's life and health exception;

(2) With the issuance of the Attorney General's April 2005 Opinion, the case became moot, since the Opinion is binding on prosecutors, and, therefore, abortion providers do not have to fear prosecution for performing abortions like the D&E, which are currently constitutionally protected; and

(3) If the Court is unwilling to rely on the Attorney General's interpretation, it should certify the question of its proper interpretation to the Michigan Supreme Court before ruling on the constitutionality of the LBDA.

Source: prnewswire