Fifth Circuit upholds Louisiana’s admitting privileges law

By Dave Andrusko

Pro-life Louisiana State Rep. Katrina Jackson, who spoke at the March for Life, and Louisiana RTL executive director 
Ben Clapper.

On September 26, NRL News Today reported that a divided three-judge panel of the 5th Circuit Court of Appeals had ruled that a 2014 Louisiana law requiring abortion providers to have admitting privileges at a nearby hospital passed constitutional muster. The 2-1 ruling reversed the 2017 ruling of federal district court Judge John deGravelles, who had blocked the Unsafe Abortion Protection Act authored by state Rep. Katrina Jackson.

Even better news Friday, ironically just as Rep. Jackson was addressing the March for Life: The full 5th Circuit rejected the abortion industry’s request to rehear the case on a vote of 9-6.

“The 5th Circuit has spoken today, providing its final word on Act 620 that protects the health and safety of women in Louisiana,” Rep. Jackson said. “I look forward to this law, which was supported by an overwhelming bipartisan majority of my colleagues, going into effect.”

Benjamin Clapper, Executive Director of Louisiana Right to Life, added, “We commend Rep. Katrina Jackson, Attorney General Jeff Landry, and Gov. John Bel Edwards for their support of the law and its defense. As shown today in Washington, D.C., Louisiana is a model for the nation of bipartisan pro-life leadership.”

In a pointed 20 page dissent, Judge James Dennis echoed the dissenter’s argument from the three judge panel. That the portion of the Texas law struck down by the Supreme Court in 2016 in Whole Woman’s Health decision, is “almost identical” to Act 620 and provided no medical benefit to women.

Not so, said Judge Jerry Smith , writing for the majority. He concluded “The facts in the Louisiana case are ‘remarkably different,’ from those in Whole Women’s Health, because the situation in Texas is different than in Louisiana,” according to Sabrina Canfield of Courthouse News.

For example, Judge Smith noted that unlike Texas, the Louisiana rule is unlikely to force any clinics to close. “Here, only one doctor at one clinic is currently unable to obtain privileges; there is no evidence than any of the clinics will close as a result of the Act,” he wrote.

Moreover, “We are bound to apply WWH [Whole Women’s Health], which is highly fact-bound, and the records from Texas and Louisiana diverge in all relevant respects,” Judge Jones wrote. “Act 620 results in a potential increase of 54 minutes at one of the state’s clinics for at most 30% of women. That is not a substantial burden at all, much less a substantial burden on a large fraction of women as is required to sustain a facial challenge.”

“Ever since we began working with State Rep. Jackson 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,” said Clapper. “Our law should never create special loopholes so that abortion facilities can operate in a sub-standard manner. These facilities and their physicians should be held to the same standard as all outpatient surgical facilities.”

Back in September Dorinda Bordlee, Senior Counsel of Bioethics Defense Fund, added, “In light of a U.S. Supreme Court opinion that unjustly struck down a similar Texas admitting privileges law, today’s 5th Circuit ruling is a huge win. 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. This pro-woman, pro-life legislation recognizes the reality that abortion endangers the lives of both women and children.”