Louisiana’s “Unsafe Abortion Protection Act” is different than Texas’ HB2 and why that matters

By Dave Andrusko

Whatever the ultimate outcome, last night’s decision by the Supreme Court to grant an emergency stay blocking enforcement of a Louisiana law requiring abortionists to have admitting privileges at a local hospital could well mean the justices actually might consider the reasons the federal appeals court upheld Act 620.

The core of the case against the 2014 Louisiana law is found in the 2017 opinion of Judge John W. deGravelles of the Federal District Court in Baton Rouge. He concluded the law was essentially identical to Texas’ HB 2 law which the Supreme Court (then consisting of only eight members due to the death of Justice Scalia) struck down in its 2016 Whole Woman’s Health v. Hellerstedt decision.

A divided three-judge panel of the 5th Circuit begged to differ with Judge deGravelle. Pro-abortion litigants asked the full 5th Circuit to hear the case, but were rejected, 9-6. The plaintiffs then asked the Supreme Court for an emergency stay.

So how is Act 620—Unsafe Abortion Protection Act—different than Texas’ HB2? Here is the Washington Post’s Robert Barnes’ summary of the panel’s conclusion:

Judge Jerry E. Smith, writing for the two-member appeals court majority, said that the court complied with the Supreme Court’s decision in Whole Woman’s Health by taking a painstakingly close look at the details.

“Unlike in Texas, the [Louisiana law] does not impose a substantial burden on a large fraction of women,” he concluded.

He said the closing of some clinics in Louisiana, as opposed to Texas, would not dramatically increase driving distances, and that it was easier for doctors in Louisiana to obtain admitting privileges. The “vast majority” of the six doctors who performed abortions in Louisiana “largely sat on their hands” instead of working hard to procure the credential, Smith wrote.

He concluded that “at most, only 30 percent of women” seeking abortions in Louisiana would be affected.

But there’s more to it, of course, as Louisiana Right to Life explained in a fact sheet about the law. Here are just three of the many points made. (All emphases are mine.)

*“Texas’ law that was struck down in Whole Woman’s Health v. Hellerstedt not only requires physicians at abortion facilities to have admitting privileges at a local hospital, but it also required abortion facilities to meet ambulatory surgical center requirements. Louisiana’s 2014 Act 620 requires physicians at abortion facilities to have admitting privileges at a local hospital within 30 miles of the facility. It does not include the ambulatory surgical center requirement. The different geography and demographic distribution of Louisiana is also very different from Texas, prompting the appellate court to find that the law’s benefits to women’s health are not outweighed by its burdens.” [“The driving distance between abortion facilities with admitting privileges is much different than in Texas, reducing the argument that the law is an undue burden on a woman’s right to choose.”]

*“By law, physicians at an outpatient surgical center in Louisiana has to have admitting privileges at a local hospital. It should be the same with abortion.”

*This is about continuity of care. Because of Act 620 “the same doctor who knows the exact nature of the complication can help the patient in the hospital, improving the continuity of care.” Louisiana law “requires surgeons in outpatient surgical centers to have admitting privileges at local hospitals so that the physician can admit and treat a patient if an emergency arises. Louisiana 2014 Act 620 simply requires the functional equivalent standard for surgical abortion providers. There should be no abortion loopholes when it comes to the standard of care.”