In the days since the Supreme Court overturned Roe v. Wade, abortion providers have taken the fight to the states, where reproductive rights will now be determined. They’ve had early wins in Louisiana and Utah, where judges temporarily blocked statewide bans from going into effect.
Providers in Idaho, Kentucky, Mississippi, and Texas have filed similar lawsuits and are seeking injunctions. With help from the federal courts all but off the table, lawyers are looking at state constitutions and state court decisions to find protections.
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In Louisiana, Hope Medical Group for Women argued in its lawsuit that the state’s trigger laws (which got their needed trigger with the Supreme Court decision) “lack constitutionally required safeguards to prevent arbitrary enforcement.” Orleans Parish Civil District Court Judge Robin Giarrusso issued a temporary restraining order allowing abortions to resume in the state.
Third District Judge Andrew Stone granted an injunction in Utah, acknowledging that the case would be appealed to the Utah Court of Appeals or Utah Supreme Court.
In Mississippi, providers are suing, emphaziing a 1998 state Supreme Court decision said that abortion rights are protected in the state constitution. If upheld, that would supersede the state’s 2007 trigger law.
“The Mississippi Supreme Court’s 1998 decision interpreting the Mississippi Constitution exists completely independent of the U.S. Supreme Court’s decisions about the federal Constitution. It is binding precedent.” Rob McDuff of the Mississippi Center for Justice, an attorney on the 1998 lawsuit, told Mississippi Today. “As confirmed by the Mississippi Supreme Court in that case, the decision about whether and when to have children belongs to individuals and families, not to the state’s politicians.”
According to that court’s decision, “The right to privacy in article III, § 32, of the Mississippi Constitution encompasses the right to autonomous bodily integrity. The right to choose to have an abortion, like many other medical procedures, is included in the right to autonomous bodily integrity. While we do not find the Mississippi Constitution to provide an explicit right to an abortion, abortion is protected within the penumbras of the right to privacy.”
Texas still has its six-week abortion ban in place, but additionally a trigger law banning all abortions—passed last year in anticipation of the Supreme Court doing what it just did—is set to go into effect 30 days after the Supreme Court’s decision, and in the meantime, long-indicted state Attorney General Ken Paxton has said that the state would enforce a pre-Roe abortion ban still on the books. Providers in the state are challenging enforcement of old laws in court, trying to eke out at least a little more time for even the limited possibilities under the SB 8 vigilante law.
This is how it goes at this point: Patient advocates look for any angle to knock down one state law, or postpone it going into effect, or carve out a loophole. Anything to reduce the human suffering that is going to result from abortion bans, from the increase in maternal mortality (particularly for Black women) to widespread economic hardship, with damage not just to those who need abortions for unplanned pregnancies or because of fetal anomalies, but also to those with ectopic pregnancies and in need of miscarriage care.
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