Louisiana abortion clinic rule heads to US Supreme Court

Washington D.C., Mar 3, 2020 / 17:30 pm

A Louisiana abortion clinic regulation sponsored by a pro-life Democrat could have a major impact on precedent regarding legal abortion, with the U.S. Supreme Court set to hear the case Wednesday.

Louisiana's law, the Unsafe Abortion Protection Act, was sponsored by Democratic State Rep. Katrina Jackson, now a State Senator, and signed by then-Gov. Bobby Jindal, a Republican, in 2014.

The act requires abortion clinics where surgical abortions are performed to have the same safety standards as those of other ambulatory surgical centers. Abortion doctors must have admitting privileges at a hospital licensed by the state health department and with the ability to provide necessary "surgical and diagnostic" care. The hospital must be within 30 miles of the clinic.

It was immediately challenged in court by the Shreveport abortion clinic June Medical Services. If the court upholds the law, two of the three abortion providers in the state could close.

The Louisiana law now scrutinized in the case named Gee v. June Medical Services is said to be similar, if not identical, to a Texas law struck down 5-3 in 2016 Supreme Court decision Whole Woman's Health v. Hellerstedt. That ruling said Texas had placed an "undue burden" on a woman's access to abortion

However, the Supreme Court's makeup has changed. U.S. Supreme Court Justice Anthony Scalia, who died months before the decision, has been replaced by Justice Neil Gorsuch. Justice Anthony Kennedy, often a swing vote favoring pro-abortion rights decisions, voted against the Texas law but has since been replaced by Brett Kavanaugh.

Among the Louisiana law's defenders is Dr. Grazie Pozo Christie, M.D., a Miami-based radiologist and policy advisor for the Catholic Association.

"Outpatient surgical centers in Louisiana are held to reasonable standards by the state in order to ensure patient safety," she said March 3. "One of these standards is requiring physicians to have admitting privileges in nearby hospitals--ensuring continuity of care and weeding out incompetent and unethical practitioners."

"The state's abortion clinics are so bent on being held to a lower standard that they have taken their case all the way to the Supreme Court," Christie charged. "The health and wellbeing of patients should always be more important than allowing abortion businesses to cut corners and save money."

Jackson, a sponsor of the bill, is an African American Democrat who describes herself as a "pro-life feminist."

She said she has been "very aggressive" in pursuing more abortion restrictions but rejected claims the law was a disguised attack on abortion, the Washington Post said. She is "very intentional" about the bills she sponsors.

"I thought it was common sense," she told the Washington Post.

Louisiana solicitor general Elizabeth B. Murrill told the New York Times the hospital privileging process helps evaluate competency.

"Women and girls would be afforded better health care. That's the big picture," she said.

Two of the five abortion doctors in the state have secured admitting privileges, in New Orleans and Shreveport, respectively. However, the Shreveport doctor said he could not handle this work on his own. A lower court judge agreed that the regulation would leave the New Orleans doctor as the only abortion doctor and at the only clinic in the state.

Murrill characterized the measure as a common-sense way to protect women's health. Abortion doctors who failed to secure admitting privileges should have tried harder.

"Any failure to have privileges is attributable to their sitting on their hands," she said.

Kathleen Pittman, director of Hope Medical Group for Women, an abortion clinic subsidiary of June Medical Services, told the New York Times that hospitals do not have incentives to provide admitting privileges and sometimes decline for economic and political reasons, including the possibility of public opposition. The State Board of Medical Examiners sufficiently credentials and licenses physicians, she said, defending abortion as safe. She said hospitalizations after abortion are rare.

A 2017 federal district court decision striking down the law said only four patients of Hope Clinic in the previous 23 years of operation required transfer to a hospital for treatment. The clinic serves about 3,000 patients a year.

"In each instance, regardless of whether the physician had admitting privileges, the patient received appropriate care," Judge John W. deGravelles of the Federal District Court of Baton Rouge said.

A panel of the 5th Circuit Court of Appeals, however, upheld the law on the grounds that it brought abortion provider standards in line with standards for ambulatory surgical centers.

Also in defense of the law is a brief submitted to the U.S. Supreme Court on behalf of the Secretary of the Louisiana Department of Health Dr. Rebekah Gee.

Louisiana began licensing abortion clinics after reports of "shockingly unsanitary and dangerous conditions" at abortion clinics prompted a 1999 executive order by then-Gov. Mike Foster. When the state legislature considered the bill in 2014, witnesses who testified in the bill's favor included two doctors who later served as witnesses for the state during the trial.

"Louisiana abortion clinics have a long, disturbing history of serious health and safety problems, among other failures of legal compliance," Gee's brief argued. It said abortion "carries known risks of serious complications that may require intervention in a hospital."

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National medical organizations, including the American Medical Association, the American College of Obstetricians and Gynecologists, and the American Academy of Pediatrics, filed an amicus brief against Louisiana's law. They asked the court to uphold its 2016 decision.

Some supporters of Louisiana's law say it significantly differs from Texas' law that did not survive the Supreme Court. They cite the Fifth Circuit Court of Appeals ruling that the Louisiana law aims to align the clinics' surgical abortion standards with those of ambulatory surgical centers.

Jackson said she had long hoped for a breakthrough on eliminating abortion.

"I prayed one day that it would come, but I never thought it would be with this bill," she told the Washington Post.

"In a post-Roe v. Wade society, I always figured Louisiana would be there. With a number of other states maybe, but Louisiana would always be one of them."

In February 2019, the Supreme Court temporarily blocked Louisiana's law from taking effect.

In response, Archbishop Joseph Naumann of Kansas City in Kansas, the chair of the U.S. bishops' pro-life committee, said that the law simply required "basic health standards" of abortion clinics. He said that the court's stay, together with the abortion industry fighting the law, are "further evidence of how abortion extremism actively works against the welfare of women."

Though the legislation sponsor is a Democrat, national Democratic leaders have weighed in against the bill. Nearly 200 Members of Congress, including House Speaker Nancy Pelosi (D-California) and Senate Minority Leader Sen. Chuck Schumer (D-N.Y.) have submitted a brief opposing the Louisiana law, National Public Radio reports.

In January, 39 U.S. Senators and 168 Members of the House of Representatives, hailing from 38 states, signed an amicus brief from the group Americans United for Life. They asked the court to uphold the Louisiana law and to address pro-abortion rights precedents like Roe v. Wade and Planned Parenthood v. Casey's "unworkable" finding of a "right to abortion."

Jackson, who characterizes herself as a "pro-whole life" Democrat, suggested that Louisiana pro-life Democrats are uniquely open about their views.

"There are pro-life Democrats all over this nation, but they have a tendency to stay quiet because it's not popular in the party, nationally," she told the Washington Post. Jackson argued that Republicans do not do enough to help children who are born have "a chance at the American Dream."

For Democrats, in her comparison, "We believe in life from womb to the tomb, from conception until death, and we fight for it." She pointed to Louisiana's Medicare expansion and efforts to improve schools and provide health insurance and job opportunities.