5th Circuit Upholds Louisiana’s 2014 Unsafe Abortion Protection Act

By Louisiana Right to Life

Editor’s note. Since this was written, the Center for Reproductive Rights has asked that the full Fifth U.S. Circuit Court of Appeals rehear the case.

Judge Jerry Smith

Wednesday, Sept. 26 was a big day for Louisiana in its efforts to protect women’s health as a three-judge panel of the U.S. 5th Circuit Court of Appeals voted to uphold the 2014 Unsafe Abortion Protection Act (Act 620), which requires abortion providers to have admitting privileges at a nearby hospital.

The 2-1 ruling came four years after the law was overwhelming approved by the Louisiana Legislature and signed into law by then Gov. Bobby Jindal. The latest ruling overturns a 2017 decision (by U.S. District Court John deGravelles, who struck down the law and said it did not protect women’s health and would have increased “the risk of harm to women’s health by dramatically reducing the availability of safe abortion in Louisiana.”

That ruling by deGravelles came after the Supreme Court struck down a similar Texas admitting privileges law in Whole Woman’s Health v. Hellerstedt. But 5th Circuit Appeals Court Judges Jerry Smith and Edith Clement found the Louisiana law does not impose the same “substantial burden” on women as the Texas law did.

Judge Edith Clement

According to the 5th Circuit ruling, the district court overlooked that the facts of the Louisiana case “are remarkably different from those” that invalidated the Texas case. The court also ruled that the Louisiana law does not “impose a substantial burden on a large fraction of women” as the Texas law did.

“Careful review of the record reveals stark differences between the record before us and that which the Court considered in (Whole Woman’s Health v. Hellerstedt),” the judges wrote in their decision.

The majority opinion put deference to legislative testimony on the law rather than taking the role of opinionator when making its ruling.

In one instance, Smith wrote:

“During consideration of the Act, the Louisiana Senate Committee on Health and Welfare heard testimony from women who had experienced complications during abortions and had been treated harshly by the provider. For example, Cindy Collins with Louisiana Abortion Recovery testified that when she underwent an abortion and began to hemorrhage, ‘the abortion doctor could see that something had gone wrong’ but, instead of assisting her, ‘told [her] to get up and get out.’ She eventually required an emergency dilation and curettage (D&C). Testimony also established numerous health and safety violations.”

The court also acknowledged the state’s laws and the role they play in the state’s position in this case.

“In addition to the concern for maternal health expressed at the hearing, Louisiana has an underlying interest in protecting unborn life. The state has codified its intent to ‘regulate abortion to the extent permitted.’ Its longstanding policy is that ‘the unborn child is a human being from the time of conception and is, therefore, a legal person . . . entitled to the right to life.’ And, Louisiana enacted a trigger law such that ‘if those decisions of the United States Supreme Court (legalizing abortion) are ever reversed or modified or the United States Constitution is amended to allow protection of the unborn then the former policy of this State to prohibit abortions shall be enforced.”

Louisiana Right to Life Executive Director Benjamin Clapper said the ruling is a victory for women’s health and safety.

“Ever since we began working with State Rep. Katrina Jackson (D-Monroe) to introduce HB 388 in 2014, the goal of requiring abortion providers to have admitting privileges at local hospitals was always about protecting women by ensuring the continuity of care in cases of emergency,” Clapper said

He said the law should never create special loopholes so that abortion facilities can operate in a sub-standard manner and that the facilities and their physicians should be held to the same standard as all outpatient surgical facilities.

“The abortion industry has failed in its attempt to use the federal courts to undermine customary health standards for women who are physically injured by the known medical risks of abortion, such as uterine puncture or cervical tearing,” added Dorinda Bordlee, Senior Counsel of Bioethics Defense Fund. “This pro-woman, pro-life legislation recognizes the reality that abortion endangers the lives of both women and children.”

The Shreveport abortion facility that filed the original lawsuit to stop enforcement of the Unsafe Abortion Protection Act will now have to decide if it wants to appeal the decision to the entire 5th Circuit or the Supreme Court or forgo further legal action.

While other states chose to dismiss their defense of similar admitting privilege laws, Louisiana did not. Louisiana Right to Life commends Attorney General Jeff Landry and Solicitor General Elizabeth Murrill for their persistent leadership in defending Louisiana’s bipartisan law.