NEW ORLEANS - Democratic-controlled cities within Republican states have launched improvisational efforts to preserve abortion services, even as officials acknowledge they will probably fall short of protecting doctors and patients sufficiently to serve as a substitute for a constitutional right to the procedure.
The moves stem from the Supreme Court’s decision last month that invalidated a federal right to abortion, meaning that states could decide whether to allow it. Last week, the city council here passed a resolution instructing the police department not to pursue cases against abortion providers or patients.
Dozens of big-city prosecutors, mostly in the South and Midwest, have said they will not file charges against medical workers who conduct abortions or their patients. Taken together, the steps do not amount to an affirmative right, but they could make the penalties for abortion more hypothetical than Republicans running the prosecutors’ states would prefer as they invoke bans on the procedure.
“We cannot ease up, we must continue to fight, because we all know what is truly at stake,” said New Orleans City Council member Helena Moreno, arguing for the resolution last week. “We’re a blue dot here, a city that is fighting for its people, for all of its people.”
The movement is spreading, even as its chief proponents acknowledge limits to what they can accomplish. Prosecutors in Charlotte, Atlanta and Indianapolis have pledged not to use public resources to pursue abortion providers. While New Orleans is among the first to direct police not to investigate abortion cases, several others are likely to follow in the coming weeks.
Even as Democratic cities take such steps, though, abortion bans are going into effect in states where restrictions have been held up in courts since the Supreme Court’s ruling overturned the right granted in the Roe v. Wade case decades ago.
The net result is widespread confusion, with cities and states adopting different views of where the rules stand in terms of criminalizing abortion, efforts that in some places would include jail time for those performing or undergoing the procedure.
A day after the council passed its resolution here, a judge lifted a temporary restraining order that had prevented the state’s “trigger law” banning abortion from taking effect. Then, on Tuesday, another judge reversed that decision, placing the ban back into effect.
Among the nation’s strictest, the Louisiana law does not include exceptions for rape and incest. Abortions are now illegal here after the first 15 weeks of a pregnancy. The case for the law was argued by four men, including the Republican Attorney General Jeff Landry, who said after the Friday hearing that “the judge got it right.”
“My mother always told me that a society that places itself before its children will not last,” Landry said of the initial ruling. “I think the state of Louisiana, through its people and its legislature, has spoken again and again and again, constitutionally and statutorily in anticipation that Roe would be overturned, that the state of Louisiana would respect its children before themselves.”
Four women represented the plaintiffs in the case, which the judge initially decided should be heard in a court in the state capital, Baton Rouge, because it involves state legislation. With the new restraining order now in place, the litigation will continue.
“What’s important to know is that this was not a ruling on the merits of the case,” said Michelle Erenberg, the executive director of Lift Louisiana, a group that advocates for abortion rights. “That’s little comfort to women who were scheduled to get an abortion tomorrow. Doctors cannot show up; they are targets of this law.”
Landry’s office did not respond to several requests for comment about whether it would seek to enforce abortion laws in New Orleans. The American Medical Association also declined to comment on the city council’s resolution.
The sudden ban on abortion - and the back-and-forth over the restraining order - has left cities such as this one with a state-ordered obligation that officials say will divert already strained public resources to enforce. That is the argument that city councils and prosecutors are making in some Republican states to essentially ignore the ban.
“I wanted to be a prosecutor to help people, to have an impact on public safety, and these laws do not do anything to further those goals,” said Ryan Mears, the district attorney in Marion County, Ind., which covers the city of Indianapolis.
Mears is one of the more than 50 district attorneys who signed a pledge not to prosecute cases against abortion providers or patients. He faces election later this year, and he said his position has generated many angry emails in a state where Republicans have held the governorship and both houses of the legislature for more than a decade.
“I think that this is a reminder that a prosecutor’s office can serve as a real check on the power of the state government,” Mears said. “People go to the doctor’s office because they need help. And I can tell you that in 20 years, I do not want to be known as the person who locked up a bunch of doctors and nurses.”
The office of Indiana Attorney General Todd Rokita, R, indicated that Mears was within his powers to not enforce the state’s abortion law.
“The General Assembly has given prosecutors 100 percent discretion in filing criminal charges, including those regarding violations of Indiana abortion laws,” Kelly Stevenson, a spokesperson for the attorney general, said in a statement.
Later this month, the city council in the Democratic stronghold of Austin, the Texas capital, will vote on a resolution similar to the one passed in New Orleans last week. Known as the Grace Act, the resolution would instruct the police department to make abortion cases their lowest priority.
“We’re in a state of confusion right now in Texas, so we need to take as many steps as we can to clarify what we stand for,” said Austin City Council member Vanessa Fuentes, a proponent of the resolution. “What I am hearing most is fear: What can we do, where can we go? And for a constituency like mine, which is predominantly of color and disproportionately affected, it is a very troubling time, and we must provide some comfort.”
With a ban on most abortions in Texas, those seeking one must travel to New Mexico or farther to find a state allowing the procedure. After the trigger law took effect here, Louisianans seeking abortions must look to Illinois as the closest state where abortion is legal.
New Orleans, like many of the cities scrambling to buttress abortion rights, is a blue dot in a sea of red. Donald Trump beat President Joe Biden in the state by nearly 20 percentage points but lost in Orleans Parish. The governor, John Bel Edwards, is a Democrat but a staunch opponent of abortion rights.
This is also a city where crime, according to recent polling, is the most pressing public concern. Violent crime spiked here during the pandemic shutdown, and New Orleans now has one of the highest homicide rates in the nation.
“We have been bracing for this possibility for some time,” said Jason Williams, the district attorney for Orleans Parish. “We will not shift priorities in our office as a result. We don’t have the resources now to address the crime surge attributable to the pandemic. We will not be policing women’s bodies.”
Williams said his position and the council’s resolution are important because, despite the state law banning abortion, city directives will determine how the policy is carried out on the ground.
But he said the state will certainly intervene if New Orleans does not enforce the abortion ban, setting up more battles in court and more confusion among doctors and patients.
“This certainly doesn’t provide enough legal cover for doctors or women having abortions,” Williams said. “But budgets are kind of the moral code of a city and describe what its priorities are. And right now, there are no investigators in my office or in the police department trained in how to investigate women’s reproductive rights, and that is not going to change.”
New Orleans has one of the highest rates of maternal and infant mortality in the nation, a problem that public health officials say will probably worsen with the abortion ban.
Among those who filed affidavits supporting the restraining order that had suspended the abortion ban was Jennifer Avegno, the medical doctor who runs this city’s health department. Avegno wrote that “there is a complete lack of clarity and confusion among the medical community on the ground.”
“Oncologists do not know whether, or when, they would be able to treat pregnant patients with chemotherapy when it would result in terminating the pregnancy,” she wrote. “Hospital administrators have also expressed their concerns about staffing shortages, particularly among nurses and other staff, who may refuse to participate in treating certain patients out of fear that they, too, could be criminalized for the treatment decisions of physicians and others.”
The council’s resolution was designed, in part, to clarify the police department’s role in enforcing the new law. But it was a political statement, as much as a policy directive, from a Democratic local government confronting the conservative one that surrounds it.
The resolution, which states that the city “recognizes that reproductive rights are human rights,” passed unanimously.
“Make no mistake about where we are: We are at war,” council member Jean Paul Morrell said. “This will likely not be the last action that this council will take to correct erroneous decisions of this Supreme Court.”