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Temporary restraining order on state abortion ban extended by judge; ruling likely to come Tuesday

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Center for Reproductive Rights
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The Hope Medical Group for Women abortion clinic in Shreveport, Louisiana.

A temporary restraining order blocking the state’s near-absolute ban on abortions will remain in effect until at least one more day pending a ruling from a Baton Rouge judge.

After hearing arguments from attorneys representing a Shreveport abortion clinic and the state attorney general on Monday, Judge Donald Johnson of the 19th Judicial District Court said he will issue a ruling Tuesday morning, potentially extending the restraining order or lifting it and allowing the state’s abortion “trigger ban” to take effect.

Johnson gave both sides until 10:00 a.m. Tuesday to submit final findings stemming from the hearing. The temporary restraining order will remain in effect at least until then, allowing the state’s three abortion clinics to remain open for the time being.

The on-again, off-again status of the state’s trigger law, which took effect immediately after the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization ended constitutional protections for abortion access, has left doctors who care for pregnant people and abortion providers in a legal gray area while the state’s judicial system considers the constitutionality of the state’s overlapping, and sometimes contradicting, set of abortion restrictions.

The Hope Medical Group for Women, a Shreveport-based abortion clinic, and a group of Louisiana medical students sued the state in late June saying the laws were “unconstitutionally vague” and made it impossible to determine when abortions could be performed under the few exceptions in the law.

A New Orleans judge issued a temporary restraining order blocking the enforcement of the restrictions on June 27. That order remained in effect until July 8, when another New Orleans judge ruled that the case was filed in the wrong jurisdiction, and ordered that it be reheard in Baton Rouge, the typical venue for any challenge to state law.

Johnson reissued the restraining order last week in advance of Monday’s hearing. Whatever the result of Tuesday’s ruling, the legal battle is likely to continue in the state appeals court and eventually proceed to the Louisiana Supreme Court.

During Monday’s hearing, plaintiff attorney Joanna Wright argued that conflicting language in three of the state’s trigger laws that criminalize abortion made it unclear under what circumstances the procedure would be allowed.

The law includes exceptions to terminate ectopic and other medically futile pregnancies and allows abortion to prevent the death of a pregnant person or prevent permanent damage to a life-sustaining organ.

But Wright argued that the statutes lacked enough detail, and doctors wouldn’t be able to determine what conditions and circumstances would qualify.

The law dictates that the Louisiana Department of Health issue a definitive and exclusive list of conditions that would qualify a pregnancy as medically futile, but the state agency has not yet done so.

Attorney John Balhoff, arguing on behalf of the state, said in the absence of the formal list, doctors could use their “reasonable medical judgment” to decide which pregnancies were medically futile.

He added that it was “obvious” that a doctor’s judgment would include protecting organs such as the brain, heart and lungs and would exclude, for example, the gallbladder. But Balhoff’s own comments added to the confusion.

“You can even operate with one lung,” Balhoff said, suggesting that risk of permanent damage to just one lung wouldn’t qualify a patient for an abortion under that interpretation of the law.

Balhoff asked the judge to weigh the state’s interest in allowing the trigger law to take effect during what could be a prolonged legal battle against the plaintiffs' concerns that the ambiguity in the law could put a small number of doctors in legal jeopardy.

“If the statute is blocked, the lives of all of these unborn children are at risk again,” Balhoff said. “The state argues that interest far outweighs anything else.”

But the plaintiffs argued that the lack of clarity has already forced doctors and patients to pursue more dangerous and invasive courses of treatment to avoid running afoul of the law.

Wright said during the brief period that the restraining order was lifted this month, a Louisiana doctor treated a 16-week pregnant patient who entered labor well before the fetus was viable. The patient requested an abortion by dilation and evacuation — a typical treatment in those circumstances. But because the doctor was unsure if an abortion would be allowed under state law, the patient was forced to undergo labor and deliver the nonviable fetus.

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Paul Braun
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WRKF
Louisiana Attorney General Jeff Landry (left) addresses the media after a court hearing on the state's abortion "trigger laws" while Solicitor General Liz Murrill and attorney John Balhoff look on. July 18, 2022.

In a press conference on the courthouse steps, state Attorney General Jeff Landry said he expects the case to ultimately be settled by the state Supreme Court. He said the plaintiffs’ effort to delay the implementation of the law amounted to obstructionism.

“Those people who don’t like it have two choices,” Landry said. “They can go and try to change the law. If they find themselves in the minority of ideas, they can pack their bags and leave.”

And Landry reasserted his claim that the temporary restraining order would not prevent him or other prosecutors from seeking criminal convictions for doctors who provided abortion care while the trigger law was on hold.

Reporter Rosemary Westwood contributed to this report.

Paul Braun is WRKF's Capitol Access reporter.

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