A state law set to take effect in 10 days could leave Louisiana with a single clinic providing abortions — the Women’s Healthcare Center in New Orleans — staffed by only one doctor who will able to legally perform the procedure.
In 2011, there were 7 abortion clinics in Louisiana. By the beginning of this year, there were only three, due to what pro-choice activists describe as a concerted effort by the state government to restrict abortion access to the greatest extent possible.
Now, a law passed by the state legislature in 2014, requiring that doctors providing abortions have “admitting privileges” at nearby hospitals, could mean two of the state’s remaining three clinics will no longer be able to perform the procedure beginning Feb. 4.
On Friday, lawyers for the Center for Reproductive Rights announced they would challenge the law in the U.S. Supreme Court. In a last-ditch attempt to block the law, they also filed a motion to stay a Jan. 18 Fifth Circuit Court of Appeals ruling that upheld the law. The group asked that the law to be put on hold until the Supreme Court has a chance to rule on it.
“The access to abortion in Louisiana is already hanging by a thread,” lead council Travis J. Tu said. “And if they let this law go into effect it may be virtually extinguished before the Supreme Court ever gets a chance to weigh in.”
Less than an hour after speaking with The Lens, Tu’s motion was denied by the Fifth Circuit. The law is now set to take effect on Monday, Feb. 4.
“There’s only one way to go from here,” said Tu. “We gotta take it upstairs to the Supreme Court.”
The fear for pro-choice advocates is that by the time the Supreme Court issues a ruling — if it even agrees to take the case — the law will have forced the closure of the majority, if not all, of Louisiana’s remaining abortion clinics. A spokesperson for the Center for Reproductive Rights, Kelly Krause, told The Lens that they will ask the Supreme Court, through an emergency motion, to step in and temporarily block the law.
Known as Act 620, the law requires abortion providers to have admitting privileges at a hospital within 30 miles of their clinic. As defined by this law, these doctors would need to obtain permission from a hospital to admit their patients and use the facility to diagnose them and, if necessary, perform surgery.
The law passed through the Louisiana legislature in 2014 with overwhelming support — 88-5 in the House of Representatives and 34-3 in the Senate.
Its proponents praise the law as a way to protect the safety of women seeking abortions. But critics insist that it’s a thinly veiled attempt to curtail access to safe, legal abortions in Louisiana. They argue that admitting privileges are difficult to obtain for abortion providers and unnecessary for the safety of their patients.
Act 620 is very similar to a law passed in Texas in 2013. In 2016, the Supreme Court ruled that the law was unconstitutional, finding that it provided few safety benefits to patients while severely infringing upon women’s constitutionally protected access to abortion services. But by the time the law was struck down, the number of Texas clinics had fallen by 80 percent, from 40 to eight
When the Louisiana law was passed in 2014, a coalition of abortion clinics and providers challenged it in the District Court of the Middle District of Louisiana. In 2016, Judge John deGravelles ruled that the law was unconstitutional, writing that one purpose of the bill was “to make it more difficult for abortion providers to legally provide abortions and therefore restrict a woman’s right to an abortion.”
“There is a mountain of uncontradicted and un-objected to evidence supporting this conclusion,” he wrote, adding that the law makes it likely that “Louisiana would be left with one provider and one clinic.”
Attorney General Jeff Landry appealed and, in September 2018, the Fifth Circuit Court of Appeals reversed the district court decision in a 2 to 1 ruling, concluding that the law was constitutional and could go into effect.
Writing for the majority, Judge Jerry E. Smith found that the Louisiana law was “remarkably different” from the Texas case. Vitally, he claimed that obtaining admitting privileges in Louisiana isn’t as difficult as in Texas, and that Louisiana’s remaining abortion providers “failed to seek admitting privileges in good faith.”
He concluded that the law would only potentially close one clinic, and said this was not overly burdensome because it would “affect, at most, only 30% of women.”
In his written opinion, Smith also noted that “Louisiana has an underlying interest in protecting unborn life.”
“It’s kind of remarkable, extraordinary, absurd, that the Fifth Circuit has put us in this position, and said the exact opposite of what the Supreme Court has said,” Tu told The Lens. “The Fifth Circuit realized it couldn’t reach the outcome it wanted, so it just rewrote the facts.”
Perhaps the biggest gap between the district and appeals court rulings is on the question of whether the doctors tried hard enough to obtain admitting privileges. In his ruling, deGravelles dedicated 20 pages to enumerating the efforts of Louisiana’s five remaining abortion providers. Combined, the five physicians formally applied for admitting privileges at 13 different hospitals. Only one was granted, according to the ruling.
He noted that one doctor’s attempts to get admitting privileges “reads like a chapter in Franz Kafka’s ‘The Trial.’ ”
On Jan. 18, the full Fifth Court of Appeals denied a motion to rehear the case in a 9-6 ruling. In a dissenting opinion, Judge James L. Dennis said the majority’s attempt to distinguish Act 620 from the unconstitutional Texas law was “erroneous and distorted,” and that they were turning a “blind eye to the additional real world burdens Act 620 will impose on women.”
On Jan. 22, the 46th anniversary of the Supreme Court’s Roe v. Wade ruling, Landry announced that the state could start enforcing the “pro-life and pro-woman” law by the end of the month.
Following the Texas Model
From its inception, Act 620 was in large part designed to inhibit abortion access in Louisiana, court documents and public statements from government officials show.
The main sponsor of the act was State Representative Katrina Jackson, a Democrat from Monroe. In 2014, Dorinda Bordlee, vice president of the Bioethics Defense Fund, a pro-life group, sent an email to Jackson regarding the Texas admitting privileges law which she said had “tremendous success in closing abortion clinics and restricting abortion access in Texas,” according to the ruling. Bordlee added that Act 620 “follows this model.”
When former Governor Bobby Jindal expressed his support for the law in 2014, he said that it would “build upon the work . . . done to make Louisiana the most pro-life state in the nation.” Also, according to the district court ruling, when Louisiana Department of Health and Hospitals Secretary Kathy Kliebert testified before the state legislature, she said that the law would strengthen the department’s ability to protect “unborn children.”
Critics, along with Judge deGravelles, argued that the law was not primarily about safety because abortion clinics simply don’t need admitting privileges in order to be safe.
“It is nearly impossible for doctors who provide abortion care to obtain admitting privileges,” said Michelle Erenberg, the executive director of Lift Louisiana, a reproductive health advocacy group. “And the main reason for that is abortion procedures are extremely safe. Complications that require going to the hospital are so rare. It’s a medically unnecessary requirement. And the Supreme Court, in 2016, said that.”
At the Shreveport Hope Medical Group for Women clinic, for example, the Fifth Circuit noted that over 20 years of performing 3,000 abortions a year, only four of their patients have required hospitalization.
Such a small number of hospitalizations may explain, in part, why so few abortion providers have admitting privileges, deGravelles wrote.
“Hospitals may deny [admitting] privileges or decline to consider an application for privileges for myriad reasons unrelated to competency,” says the district court ruling. “In general, hospital admitting privileges are not provided to physicians who never intend to provide services in a hospital.”
It goes on to say that several application attempts were denied due to the political implications of abortion procedures, as well as pro-life objections from hospital staff.
The real danger, critics argue, is what will happen to women if the majority of the state’s remaining clinics close. Multiple studies have shown that strict abortion laws don’t lead to a parallel decrease in abortions. Critics argue that the laws will simply drive women to riskier options, like self-induced abortions or unregulated clinics.
One 2018 study, for example, showed that among pregnant women in Louisiana receiving some prenatal care and who reported that they had considered abortion, 11 percent said they had attempted to induce their own abortions.
Roughly 10,000 women receive abortions in Louisiana every year, according to the Fifth Circuit ruling. The lone provider who is expected to continue practicing after the law goes into affect only performed 2,950 of those procedures in 2013, according to the Fifth Circuit ruling.
For many women, traveling out of town, or even out of state, for an abortion can be financially untenable, Erenberg said. In Louisiana, women must submit to an ultrasound and state-mandated counseling, then wait 24 hours, before receiving an abortion. This, Erenberg said, creates a disparate impact on low-income women and women of color.
“When you add that to the cost of child care for children a woman may already have — taking time off of work and losing those wages, traveling to another city or maybe out of state — you can see that the impact is going to disparately fall on low income women, and many women of color,” she said.
The Five Louisiana Providers
There are currently five abortion providers working at three clinics in Louisiana: Women’s Health Care Center in New Orleans, Delta Clinic in Baton Rouge, and Hope Medical Group in Shreveport.
There are two doctors at the Hope clinic. The primary physician who handles 71% of the abortions does not have admitting privileges. The second physician does have admitting privileges at a Shreveport hospital through his separate OB/GYN practice. However, he testified that he will not continue to perform abortions if he is the only provider left in Northern Louisiana, for fear of retribution.
The district court ruling lists some of the threats and physical danger faced by abortion providers in Louisiana. The Shreveport clinic in particular has been subject to several attacks, including by a man with a sledgehammer, an arsonist with a Molotov cocktail, and another attacker who drilled a hole in their wall and poured acid through it.
“The evidence is overwhelming that in Louisiana, abortion providers, the clinics where they work and the staff of these clinics, are subjected to violence, threats of violence harassment and danger,” deGravelles wrote.
The only physician at the Delta Clinic does not have admitting privileges in Baton Rouge and cannot continue providing services there under the new law. The doctor does, however, have admitting privileges in New Orleans and will be able to perform abortions at the Women’s Health Care Center.
That doctor currently performs roughly 40% of the New Orleans clinic’s abortions, according to the Fifth Circuit ruling. The other doctor who works there, and performs the majority of the clinics abortions, does not have admitting privileges. Erenberg said that the New Orleans clinic — likely the only remaining legal clinic in the state with only one qualified doctor — will probably be forced to reduce its services under the new law.
Critics of Louisiana’s pro-life posture point out that the new law is only the latest in a string of policies aimed at cutting off abortion access in the state.
“Louisiana really is one of the worst offenders, passing all kinds of onerous, medically unnecessary restrictions, to essentially set up a regulatory scheme that makes it very difficult if not impossible to operate a clinic,” Erenberg said “It’s everything from the licensing regulations put in during the Jindal administration, to actually restricting the kind of doctors that are eligible to provide abortions, to restricting the medical training to provide abortions in medical schools.”
Getting a permit to open a new clinic, for example, appears to be increasingly difficult. The Planned Parenthood clinic in New Orleans applied for a permit to perform abortions from the department of health in 2016. Nearly three years later, the department has yet to issue a response.
“This has been a long term strategy of anti-abortion activists and legislators,” Erenberg said. “And at this moment, we’re really looking at the dire results.”