Court battles prompted by the Supreme Court's June 24 ruling reversing abortion rights played out in multiple states Monday, with a judge in West Virginia blocking that state's 150-year-old abortion ban and one in Louisiana frustrating state authorities by leaving an order against enforcement of that state's ban in place, for now.
In another Monday development, the Supreme Court issued an order that put Indiana a step closer to being able to enforce a parental notification law involving girls who get abortions before they turn 18.
In Louisiana, where an abortion clinic and others are challenging the state ban, District Judge Donald Johnson left a June 11 restraining order in place. He gave both sides until Tuesday morning to submit their "proposed findings of fact and conclusions of law” in the case and gave no indication when he would finally rule.
Johnson is pondering whether to allow enforcement of the abortion ban that was written in anticipation of the U.S. Supreme Court overturning the 1973 decision that established abortion rights. That decision came June 24 and abortion access in Louisiana has been flickering ever since with a series of on-again-off-again court rulings.
Whatever Johnson decides, Louisiana Attorney General Jeff Landry said he anticipates that the case will ultimately end up before the Louisiana Supreme Court.
“We believe that ultimately we will prevail and the rule of law will be upheld,” Landry said during a news conference, that was mostly drowned out by the chants of nearby protesters, following Monday's court hearing. “Those people who don’t like it have two choices — they can try to change the law, but if they find themselves in the minority of ideas then they can pack their bags and go somewhere else.”
In West Virginia, Kanawha County Circuit Court Judge Tera L. Salango granted the Women’s Health Center of West Virginia a preliminary injunction against the 1800s-era ban, saying that in the absence of action by the court, the clinic and its patients, “especially those who are impregnated as a result of a rape or incest, are suffering irreparable harm.”
Attorney General Patrick Morrisey decried the ruling, calling it “a dark day for West Virginia.” He said his office will appeal the decision to the state Supreme Court.
In Indiana, a U.S. Supreme Court order that put the state a step closer to being able to enforce a parental notification law involving girls who get abortions before they turn 18.
The law has been blocked for five years, but the Supreme Court ordered lower courts to take a new look at the law following the landmark June 24 decision. The order formally returned the Indiana case to lower courts that had refused to act while awaiting the judgement.
Abortion remains legal in Indiana up to about 20 weeks.
In Louisiana, there is little question that an abortion ban will eventually be in effect in the state where the Legislature has long been dominated by abortion opponents. The question as the lawsuit there progresses is when. The plaintiffs in the lawsuit — a north Louisiana abortion clinic and other supporters of legal abortion — don’t deny that the state can ban abortion as a result of the Supreme Court ruling. But they have managed to buy time for Louisiana's three abortion clinics, in Shreveport, Baton Rouge and New Orleans, to stay open while they argue that the current law is unconstitutionally vague.
The plaintiffs say the law has multiple, conflicting trigger mechanisms. They also argue that state law is unclear on whether it bans an abortion prior to a fertilized egg implanting in the uterus.
Joanna Wright, an attorney for the north Louisiana abortion clinic that filed the suit, argues that an “ordinary citizen should be able to look” at the statutes and know what is permitted.
In addition, the law provides an exception for “medically futile” pregnancies in cases of fetuses with fatal abnormalities, the plaintiffs noted it gives no definition of the term and that state health officials have not yet provided a list of conditions that would qualify as medically futile.
With the list of exemptions nonexistent, Wright said doctors are left “paralyzed” and trying to make sense of what situations “count” as an exception for abortion in order to avoid prosecution and criminal punishment.
Landry’s office argues that the state ban is constitutional and should no longer be blocked. Landry, in a filing last week, argued that the law “needs only to delineate what is illegal — not define what is legal.” John Balhoff, an attorney representing Landry, argued that the terms are clear and defined.
The lawsuit originated in New Orleans, where a judge issued a temporary order blocking enforcement of the ban June 27. Nearly two weeks later, a second New Orleans judge sent the case to Baton Rouge, saying state law required that it be heard in the capital. That move, in effect, ended the initial restraining order.
But Johnson issued a second temporary restraining order July 11.
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