A Louisiana judge on Monday temporarily extended an order blocking the state trigger law but did not yet grant a preliminary injunction that would keep abortion available until a district court determines whether the near-total state abortion ban, with no exceptions for rape or incest, violates the Louisiana Constitution.
The legality of abortion in Louisiana has changed rapidly in the weeks since the Supreme Court struck down Roe v. Wade and gave states the power to enact restrictions. The ensuing confusion has left patients and abortion providers scrambling as the courts have blocked, unblocked and then reblocked the ban.
“We are still getting a lot of desperate phone calls from women who are angry or sobbing,” said Kathaleen Pittman, who runs an abortion clinic at Hope Medical Group in the Louisiana city of Shreveport. “They seem so totally beaten down because they have been trying to access care and, in one moment, it is available in a few weeks. The next minute, it may not ever be available here.”
The hearing was the latest step in a lawsuit brought by abortion providers who have challenged the state trigger law as “constitutionally vague.” A judge in Baton Rouge asked both sides of the suit to file new documents by Tuesday morning before he decides whether to grant a preliminary injunction that would keep the near-total state abortion ban from taking effect until a panel of judges rules on the merits of the case, which could take weeks.
The laws “do not clearly determine what conduct has been made illegal and what conduct is allowed,” said Joanna Wright, an attorney representing the abortion providers who are challenging the state abortion restrictions. “The Louisiana Constitution requires that criminal laws provide proper notice of what is and is not illegal.”
Shortly after the Supreme Court decision in late June, the plaintiffs sought a temporary restraining order that allowed abortion providers to keep offering services as the case moved forward. That order was granted June 27 but then dissolved July 8, when the lawsuit was moved to a different jurisdiction. For a few days, abortion was illegal throughout Louisiana.
Another judge granted a second temporary restraining order last week, again pausing the state abortion ban. “When we were granted the most recent” temporary restraining order “I don’t know how to describe the staff except for giddy,” Pittman said. “The relief was palpable around here.”
When the first restraining order expired, physicians at her clinic continued to meet with prospective patients and offer them counseling, ultrasounds and initial consultations. But patients could not access abortions while the courts considered the request to temporarily block the ban. “Some of these women had been waiting weeks, or even months,” Pittman said.
Hope Medical Group had a waiting list of 300 to 500 patients even before the Supreme Court decision to roll back the federal protections guaranteed by Roe. Many patients scheduled to have an abortion shortly after the Supreme Court decision had their appointments canceled as the clinic halted the procedure for several days because of the state trigger law. Some were able to reschedule after the district court blocked the trigger ban, but abortions stopped again when the first temporary restraining order expired a judge granted a second temporary restraining order and Hope Medical Group resumed abortions once more Thursday. “Some of the women we’re seeing today have already had appointments canceled on them twice now,” Pittman said Thursday, the first morning that her clinic was able to perform abortions after the second restraining order took effect.
Louisiana Attorney General Jeff Landry has sought to discourage patients from seeking abortions even while the state ban is blocked by the courts. When some clinics resumed services after the second restraining order went into effect, Landry tweeted a “reminder.”
“Louisiana’s laws banning abortion have not been enjoined,” he wrote. “Subject to certain exceptions, abortion remains a criminal offense in our State! Anyone performing abortions, pending outcome, will be culpable when the case is closed in favor of the laws of our State.”
But legal experts say criminal laws are not typically applied to actions that took place when those laws were blocked by the courts. “Most people would tell you there is a real retroactivity problem there,” said Elizabeth Sepper, a professor of law at the University of Texas at Austin. “You can’t apply criminal law that didn’t exist at the time to a provider who was operating under” a temporary restraining or preliminary injunction.
Landry also criticized the district court for temporarily blocking enforcement of the state abortion laws that have been supported “at the ballot box and through their elected legislature again and again and again.”
“To have the judiciary create a legal circus is disappointing and what discredits the institutions we rely upon for a stable society,” Landry tweeted after a judge granted the second temporary restraining order. “The rule of law must be followed, and I will not rest until it is. Unfortunately, we will have to wait a little bit longer for that to happen.”
The district judge may decide later this week whether the Louisiana trigger law that bans abortion will continue to be blocked as the case wends its way through the courts. If the law is not blocked, the three abortion clinics in the state will have to close their doors to patients, Pittman said. “We absolutely have to have that preliminary injunction,” she added.