Hope Medical Group for Women, an abortion services clinic in Shreveport, has filed a lawsuit challenging Louisiana’s abortion ban. (Julie O’Donoghue/Louisiana Illuminator)
State District Judge Don Johnson heard arguments Monday in the lawsuit challenging Louisiana’s abortion ban. He directed the parties involved to submit “proposed judgments” for him to consider. A temporary restraining order preventing the ban from being enforced will remain in effect pending Johnson’s decision.
Johnson granted attorneys for the defendants, Attorney General Jeff Landry and Louisiana Department of Health Secretary Courtney Phillips, an extension until 10 a.m. Tuesday to submit their proposals.
Attorneys for the plaintiffs, Hope Medical Group for Women, a Shreveport abortion clinic, its administrator Kathaleen Pittman and Medical Students for Choice argued that the state’s three abortion “trigger laws” are unconstitutionally vague. Joanna Wright, one of the attorneys, argued that the conflicting language in the statutes makes it impossible for physicians to know what services violate the law and what the potential penalties are.
Wright further argued that not only are the statutes conflicting, statements Landry has made on social media further muddy the waters as to which laws would be enforced. John Balhoff, primary attorney for the defendants, argued that Landry’s tweets were not relevant.
Johnson seemed to disagree with Balhoff’s argument.
“If the attorney general is confused in a tweet, what does that say for ordinary citizens?” the judge said.
Balhoff argued that all three of the trigger laws are enforceable and not unconstitutionally vague. He pointed out that criminal statutes must provide a minimum and a maximum penalty, which the statutes do, even though the laws provide different limits.
Balhoff also told the court the laws are clear as to what is not permissible. Under the law, abortions to remove ectopic pregnancies or a fetus that has a condition incompatible with life are not defined as abortions, he said, and therefore are legally permissible. He added that state law sufficiently states doctors must act in good faith when making healthcare decisions.
“Doctors all already operate using reasonable medical judgment,” Balhoff said.
More than a dozen physicians filed sworn affidavits in the case attesting to their confusion.
“Fear of punishment aligned with lack of clarity on how this law will be enforced can lead to devastating consequences for Louisiana women as well as moral distress for the clinicians who care for them and have taken the Hippocratic oath to do no harm,” Dr. Rebekah Gee, former Louisiana Department of Health secretary, wrote in her affidavit.
Monday’s hearing was the latest in a back-and-forth legal battle that has played out between the state and abortion providers after the U.S. Supreme Court’s decision on June 24 to overturn Roe v. Wade.
Louisiana is one of 13 states that enacted so-called “trigger laws” that went into effect when Roe v. Wade was overturned, ending the nearly 50-year reign of a constitutionally protected right to an abortion.
Plaintiffs in Louisiana filed their suit the next business day. They were granted a temporary restraining order, which prevented the state from enforcing the ban until the case could be heard. The lawsuit received an initial hearing in Orleans Parish, where attorney’s representing Landry successfully argued that it was an improper venue. The case was transferred to East Baton Rouge Parish, which rescinded the temporary restraining order granted in Orleans.
A new restraining order was granted three days later, but not before patients felt the impact of the abortion ban.
Wright presented a real-life example of a Louisiana doctor who was prevented from treating their patient: Dr. Valerie Williams, an OB-GYN in New Orleans, treated a mother who went into labor at 16 weeks, well before the point of fetal viability. In a sworn affidavit, Williams wrote that she initially offered the patient a dilation and evacuation, an abortion procedure, which the patient accepted.
But when Williams left the patient, she said a hospital attorney informed her the procedure would violate the state’s abortion ban and put Williams at risk of prosecution and jail time of up to 10 years.
Williams said that telling the patient that she would be forced to go into labor and deliver the fetus was the hardest conversation she ever had.
The patient ultimately “was forced to go through a painful, hours-long labor to deliver a nonviable fetus, despite her wishes and best medical advice,” Williams wrote.
“She was screaming — not from pain, but from the emotional trauma she was experiencing,” Williams wrote. The woman then hemorrhaged nearly a liter of blood, according to the affidavit.
“This was the first time in my 15-year career that I could not give a patient the care they needed,” the doctor wrote. “This is a travesty.”
Gee also brought up that the law does not make it clear how ill a pregnant person must be before a life-saving abortion is permissible.
“To satisfy these laws – does it have to be her heart that fails, what about her lungs, her kidneys, and so on, what organs would this law decide are necessary to protect her life?” her affidavit said.
Balhoff took issue with Gee’s affidavit, arguing that the definition of life-sustaining organs is obvious, and includes the brain, heart, lungs, kidneys and other organs.
“You can even operate with one lung,” Balhoff said.
Wright, the plaintiffs’ attorney, pointed out that Balhoff’s comment that somebody can live with one lung added further ambiguity to what is legally permissible.
Balhoff argued that the law does not need to spell out every single violation, but said that the statute goes to “extraordinary lengths” to provide clarity of definitions.
After hearing the arguments, Johnson said that he would make a decision after reviewing the proposed rulings.
In a press conference outside the courthouse, Landry said the state’s abortion ban is clear and invited those who don’t approve of the laws to leave the state.
Landry also defended his tweets, which the plaintiffs cited to illustrate confusion over the law.
“They seem to interpret my tweets better than they interpret the law,” Landry quipped.
— Piper Hutchinson (@PiperHutchBR) July 18, 2022
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