Days after a U.S. Supreme Court decision led to the closure of abortion clinics in many parts of the country, state courthouses have become a pitched new legal battleground for those seeking to maintain pregnancy termination services – with Louisiana and Utah the first to order a temporary reversal of local bans.
On Monday, courts in both states said trigger bans – laws that made abortion largely illegal after the Supreme Court rescinded a constitutional right to the procedure – would be lifted pending further legal scrutiny. In Utah, a district judge issued a 14-day injunction, citing “irreparable harm” to women from the state’s abortion ban.
A Louisiana district judge also ordered an injunction on the abortion ban until another hearing on July 8. A lawsuit challenging the state’s trigger law argues that it is “unconstitutionally vague.” Abortion providers in the state said they would reopen Tuesday.
Elsewhere, too, health care providers and advocates have petitioned state courts to block local laws, after the Supreme Court ruled last week that individual states could determine their own abortion regimes. Researchers say 26 states are either certain or likely to ban abortion in most instances.
The state-level attempts to block those bans mark a new strategic effort to preserve abortion by appealing to local constitutional protections, although some of those successes are likely to prove temporary as conservative lawmakers adapt legislation to parry judicial challenges.
“For a long time, people felt the federal constitutional protections were much stronger than state constitutional protections. But now without those federal protections, you need to find out if the state constitutions could also protect abortion rights,” said Elizabeth Nash, who tracks state reproductive health policy at the Guttmacher Institute in Washington.
State-level court cases are pending in Kentucky, Mississippi and Texas. Researchers say more cases are likely in other states as well.
But even staunch abortion advocates say some of those legal challenges will struggle to achieve long-term success.
The Louisiana challenge, for instance, questions the legality of provisions in the state’s law, “but it won’t make abortion legal in Louisiana,” said Marjorie Esman, a lawyer who was executive director of the American Civil Liberties Union of Louisiana from 2007 to 2017.
“All it will do is send the legislature back to rewrite the laws and they will likely be as stringent as possible given Louisiana’s history of strong pro-life positions.”
In South Carolina, meanwhile, a federal judge on Monday ruled in the opposite direction, clearing a legal roadblock to allow for the instatement of a six-week abortion ban.
But in Louisiana and Utah, the court actions Monday reopened a window for abortion providers to continue operating.
“It’s a temporary reprieve” Kathaleen Pittman, the administrator of Hope Medical Group for Women, told local television station WRKF. “But it’s a reprieve.” The Shreveport clinic she oversees will resume abortion services on Tuesday, she said, with staff reaching out to the 400 women whose appointments had been cancelled.
Louisiana Attorney-General Jeff Landry pledged to fight back, saying in a statement Monday: “We are fully prepared to defend these laws in our state courts, just as we have in our federal courts.” Mr. Landry had warned last week that anyone seeking to challenge Louisiana’s abortion laws is “in for a rough fight.”
If abortion is banned in Louisiana, the nearest states that offer the service are Illinois and New Mexico – a drive of more than 1,000 kilometres for some women.
Angela Adkins, an abortion rights advocate with 10,000 Women Louisiana, has spent more than three decades working for reproductive rights in the state. “We have seen many anti-abortion bills passed – and a lot of them have been struck down by the courts, or have had injunctions against them to prevent them from being enforced,” she said.
“So there is hope out there.”
In 2020, however, voters passed an amendment to the state’s constitution that says nothing in the document “shall be construed to secure or protect a right to abortion or require the funding of abortion.”
That makes it “difficult, for sure,” to appeal to the state’s constitution to protect abortion, said Michelle Erenberg, co-executive director of Lift Louisiana, a group that has criticized the state’s abortion law, saying Black women are already four times likelier than white women to die in childbirth.
“But we will continue to fight for those rights,” Ms. Erenberg added. “And we will do everything that we can to secure those rights for as long as we possibly can.”
Our Morning Update and Evening Update newsletters are written by Globe editors, giving you a concise summary of the day’s most important headlines. Sign up today.