A federal judge on August 31 issued a “limited” temporary restraining order on a Louisiana abortion health and safety law that would have gone into effect September 1. The Unsafe Abortion Protection Act (HB 388), or Act 620, requires doctors at abortion facilities to have admitting privileges at a hospital within 30 miles in case a need for emergency care arises.
This August, three abortion facilities and two abortion doctors, troubled by the prospect of their respective facility’s closure, filed a suit challenging the law’s constitutionality. Hope Medical Group for Women in Shreveport, Bossier City Medical Suite in Bossier City, Causeway Medical Clinic in Metairie, and two unnamed doctors filing under “JOHN DOE” 1 and 2 claimed that they were not provided enough time to secure admitting privileges at local hospitals.
Louisiana law says that hospitals may take more than 90 days to issue decisions on admitting privileges. Though Governor Jindal planned to sign HB 388 within 90 days of its passage, he was not able to do so due to a scheduling conflict. The bill’s sponsor, Rep. Katrina Jackson, a Democrat, however, argued that “everyone had proper notice,” referring to the bill’s overwhelming support in May with a 34-3 vote in favor in the State Senate and an 88-5 vote in the State House of Representatives.
The ruling by Judge John deGravelles of Baton Rouge ensures that the law will still take effect, but that the plaintiffs will not be penalized while their applications for admitting privileges are pending, and that their facilities may remain open. Last week, Olivia Watkins, State Department of Health and Hospitals (DHH) spokeswoman, informed the Associated Press that the agency will not close facilities on the condition that the abortion provider can demonstrate that he has already applied for admitting privileges. DeGravelles’ ruling specifies that should facilities or doctors be denied admitting privileges, they will no longer be permitted to remain open. He called for a status conference in a month to check on the plaintiffs’ applications. Currently, only one of the five abortion facilities in the state has a physician with admitting privileges.
It is worth noting that the plaintiffs refused a compromise that the state offered prior to the ruling. Kyle Duncan, attorney to the state DHH, submitted a signed declaration from the secretary of DHH on August 28 stating that it would not penalize abortion providers whose admitting privileges applications were pending a decision from a hospital. The plaintiffs rejected this accommodation, instead requesting a full restraining order to block the law, and this, DeGravelles in turn rejected.
Rep. Jackson attested that she is “pleased” with the ruling as it only temporarily exempts facilities that have pending approval of admitting privileges. She emphasized that the bill’s compassionate goal to protect women should be a uniting factor, saying: “Abortion is often called a ‘minor surgery,’ but the truth is that women frequently suffer from both physical and psychological effects from abortion. We want to make sure women receive the absolute best care, and protecting women through common-sense legislation is something we all should stand behind.”
Louisiana Right to Life’s Executive Director Benjamin Clapper likewise responded: “HB 388 was overwhelmingly approved by the Louisiana Legislature as a measure to promote the continuity of care and protect the health and safety of Louisiana women. Prompt implementation of HB 388 will allow Louisiana to raise the standard of care in Louisiana abortion facilities sooner rather than later. While any delay of the law is a setback to that goal, we believe Judge deGravelles’ limited decision was a fair one.”
DeGravelles’ decision comes in the wake of differing rulings on similar laws in the Fifth Circuit Court of Appeals, which presides over federal district courts in Louisiana, Texas, and Mississippi. On August 29, Federal Judge Lee Yeakel struck down a provision of the historic House Bill 2, which would require abortion facilities to meet the same health and safety standards required of ambulatory surgical centers (ASC). The same law’s admitting privileges provision was previously upheld in a unanimous decision by a Fifth Circuit panel composed of three women judges who ruled that the requirements did not place “undue burdens” on women seeking abortion. The Center for Reproductive Rights in turn filed a lawsuit on behalf of abortion providers challenging both the admitting privileges and ASC requirements, eventually allowing for Judge Yeakel, who presided over the trial, to rule on their side. Attorney General Greg Abbott immediately filed an emergency motion requesting that the law be enforced; however, the Fifth Circuit declined it, and decided to hold a hearing on September 12 in New Orleans.
In Mississippi, a different Fifth Circuit three-judge panel invalidated an admitting privileges law in a split decision. A major difference that affected the Mississippi ruling is that the admitting privileges law would have resulted in the closure of the state’s only abortion facility; whereas, many but not all in Texas might have been shuttered.
Thirteen states have passed similar laws requiring admitting privileges of the abortion provider, including states that provide for a similar “alternative agreement,” such as an abortionist working out an agreement with another physician who has admitting privileges. Including admitting privileges required of the facility itself, this bumps the total to a substantial 21 states, not to mention the six additional states in which the law has been temporarily enjoined and is pending court decision.
As this recent move towards requiring admitting privileges continues in states, abortion advocates have recognized its effectiveness in closing centers and taken a defensive tone, stating that the requirement is an unnecessary burden. A brief of state abortion policies by the Guttmacher Institute counts state legislation that restricts abortion with the commentary that each one listed is “beyond what is necessary to ensure patients’ safety.” Among these are requirements for: admitting privileges, health and safety standards equivalent to those for surgical centers, and specifications of the procedure room size and corridor width to permit access to emergency personnel.
Louisiana’s Unsafe Abortion Protection Act is a comprehensive bill. Besides requiring admitting privileges, it also requires doctors who perform more than five abortions per year to maintain proper licensing. Moreover, the bill clarifies that informed consent protections such as the 24-hour waiting period also apply to medical abortions. That informed consent protections be extended to chemical abortions is significant, as a recent study shows that such provisions reduce the abortion rate. Additionally, Act 620 requires that the abortion doctor report to the FDA any adverse effect the woman experiences during or after administration of the drug to induce abortion within three days of learning of the adverse event’s occurrence. More consistent abortion reporting that requires collection of complications data would benefit the current state of affairs as public health officials and the medical community assess the impact of abortion on women’s health and safety.
When not applied to abortion, admitting privileges are just as sensible, but surely less controversial. To argue that admitting privileges are unnecessary because complications are rare is akin in principle to arguing that health insurance is unnecessary for healthy individuals. We will have to wait and see in a month’s time whether the abortion providers are granted admitting privileges, and if not, what other challenges and decisions will unfold.
Genevieve Plaster is a Research Assistant at the Charlotte Lozier Institute.