Louisiana made national headlines earlier this year when the state legislature passed two bills that could limit women’s right to access an abortion. The first would ban abortion after a doctor detects fetal cardiac activity, which happens as early as six weeks into a pregnancy. The second sets up a ballot initiative that, if approved by Louisiana voters, would amend the state’s constitution to explicitly exempt abortion as a right guaranteed by the state.
Under a provision written into the heartbeat bill, the ban won’t go into effect unless a similar law passed in Mississippi — which is facing a legal challenge — is upheld in federal appeals court. The constitutional amendment still has to pass a statewide vote in November 2020.
But there were other abortion-related bills passed during this year’s legislative session that could have a more immediate impact on Louisiana women seeking abortions.
One of them would effectively limit where women could get medication abortions to the state’s three remaining abortion clinics.
Another specifies that the state Attorney General’s Office — currently occupied by Jeff Landry, a fierce defender of abortion restrictions — has jurisdiction to pursue fines against doctors who have allegedly violated state abortion laws. The law also gives Landry the power to place injunctions on clinics for allegedly violating any abortion law on the books. That bill also mandates extensive new record keeping requirements for clinics.
”The strategy … is to chip away at access, so that it doesn’t matter if the right still exists on paper or not.”—Ellie Schilling, Lift Louisiana
A third bill expands the number of people working at clinics who are legally required to report potential cases of human trafficking. And a fourth expands the state’s “Women’s Right to Know Law” to require that abortion providers give patients written information including their medical training and disciplany records.
As of this week, all four pieces of legislation have been signed by Governor John Bel Edwards. Three of them will become laws on Aug. 1. The remaining bill, House Bill 484, became effective upon receiving Edwards’ signature on Monday. A spokesperson for Edwards declined to comment and sent a press release he had previously issued about the six-week ban.
Abortion rights advocates say that the bills, backed by anti-abortion lobbyists and legislators, differ from the ban and constitutional amendment not just because they’ve received less attention, but because they represent a more subtle erosion of abortion access.
“The strategy with legislation such as abortion bans are to chip away at the right itself,” said attorney Ellie Schilling, a co-founder of Lift Louisiana, an abortion rights advocacy group. “And the strategy with laws like this, that are known as ‘targeted regulation,’ is to chip away at access, so that it doesn’t matter if the right still exists on paper or not.”
Proponents of the legislation say that the bills aren’t designed to shutter clinics, but to bolster safety standards for women.
“We want to make abortion a thing of the past. We think it’s a fundamental injustice and we want to protect the rights of all human beings born and unborn,” said Benjamin Clapper, the Executive Director of Louisiana Right to Life. “But in the moment that abortion is legal in America we need to be doing everything we can to also ensure that women receive the proper protection and the proper health and safety standards.”
Schilling said that opponents are considering litigation to keep the laws from going into effect.
“People are looking into when and if to challenge these laws,” she said.
New powers for an anti-abortion Attorney General
Two of the most concerning changes for pro-choice advocates are the new restrictions on medication abortion and the new authorities granted to Landry’s office.
House Bill 133 limits who can administer medication abortions by changing the definition of “abortion” in the part of state law that governs the licensing of abortion clinics. Medication abortions can currently be prescribed by an OB-GYN in a private practice. This change would effecively limit these types of abortions to licensed outpatient abortion clinics, of which there are only three in the entire state of Louisiana — one each in New Orleans, Shreveport and Baton Rouge.
”There’s not a sound medical reason that an OB-GYN in any setting could not provide someone with a medication abortion.”—Kiersta Kurtz-Burke, VA Medical Center
Within the Louisiana statute that governs licensing for outpatient abortion clinics, abortion is currently defined as “any surgical procedure” done with the intent to terminate a pregnancy. It gives three exceptions: if the procedure is done to produce a live birth, to remove an ectopic pregnancy, or to remove a fetus after it has died or a doctor determines that the pregnancy “has ended or is in the unavoidable and untreatable process of ending.”
House Bill 133 erases that definition and replaces it with the defintion for abortion provided in a separate Louisiana statute that covers prohibitions on abortions. In that statute, abortion is defined as “the act of using or prescribing any instrument, medicine, drug, or any other substance, device, or means” with the intent to terminate a pregnancy. The same three exceptions apply.
“This is redefining what abortion means so that all abortions, including medication abortions, can only be provided by a licensed abortion clinic,” Schilling said.
Medication abortions are typically done early in a pregnancy and involve taking two pills that induce a miscarriage. While one or both of the pills may be taken in a doctor’s office, the rest of the process occurs in the absence of medical supervision, often at the patient’s home.
“There’s not a sound medical reason that an OB-GYN in any setting could not provide someone with a medication abortion,” said Kiersta Kurtz-Burke, a doctor at the VA Medical Center in New Orleans. “You’re not going to be able to find any doctor willing to say that there is a healthcare and medical reason for this. This is just setting up obstacles and limited the ability of people to obtain an abortion.”
Recent studies have indicated that abortion provision outside of the abortion clinic setting is growing. A study from the March issue of Obstetrics and Gynocology found that the proportion of OB-GYNs providing abortions rose from 14 percent in 2009 to 24 percent in 2017. A May article from the New England Journal of Medicine argues that in the face of new federal and state abortion restrictions, primary care physicians should make medication abortions part of their routine practice.
Michelle Erenberg, the Executive Director of Lift Louisiana, told The Lens that she believes that one of the motivations for HB 133 was to preempt this national trend.
“They want to make sure there’s no other place for a woman to go once they achieve their goal of shutting down all the abortion clinics,” she said.
Clapper, whose organization helped develop and write the bill, said that this was never the intent.
“We’re pro-women too,” he said. “We believe women deserve better than abortion. We need to make sure that the abortion industry has health and safety standards that protect women.”
Burke received a medication abortion from her doctor in 2007 after an ultrasound revealed that her pregnancy wasn’t viable.
“This is how you avoid surgery,” she said. “Then, in 2007, it wasn’t even on the table that I would have to go someplace else.”
Theoretically, even under the new legislation, Burke still would have been able to get a medication abortion because of the exception for unviable pregancies. But practically, Burke says she’s unsure what would happen if she was in the same situation under the new law.
“Who’s going to make the decision of whether the pregnancy is no longer viable or not?” she said. “It’s vague enough that it’s open to interpretation and I think most OB-GYNs are going to want to err on the side of caution in terms of their own license and say, ‘Well, this is something I can’t really offer you.’ “
Erenberg had similar concerns.
“There’s just this chilling effect because abortion laws have these steep criminal penalties,” she said.
Another one of the four bills is House Bill 484, which creates new reporting and record keeping requirements that opponents say go far beyond what other medical facilities, including hospitals, must follow. Clinic directors, physicians, administrators and owners would have an “independent duty” to ensure the records are maintained.
Of major concern for reproductive rights advocates is that House Bill 484 also grants Louisiana Attorney General Jeff Landry’s office the right to pursue $1,000 civil penalties and place injunctions on clinics for a violation of any abortion regulation on the books. When the bill was first introduced, the attorney general’s ability to place injunctions on clinics and issue civil fines was isolated to the new record-keeping requirements.
”There’s just this chilling effect because abortion laws have these steep criminal penalties.”—Michelle Erenberg, Lift Louisiana
But by the time it was approved by the House of Representatives, the bill was changed to allow the attorney general to take action any alleged violations of Louisiana statutes governing abortion restrictions.
“It provides virtually no parameters for the circumstances that the attorney general would get an injunction, who he would get it against, or how long it would last,” Schilling said. “It was drafted intentionally to be vague and broad so that then they can attempt to use that power however they want whenever they want.”
She added that she was especially concerned given the man who currently occupies that office: Attorney General Jeff Landry.
“He’s basically made it part of his personal mission to prove that he’s as anti-abortion as he possibly can, and specifically to try to shut down clinics,” Schilling said.
In 2016, Landry announced his intent to continue fighting to instate a law requiring that abortion providers have admitting priveleges at a nearby hospital, saying his office “will continue to do all we legally can to protect the unborn, their mothers, and all Louisiana women.” And the amount of money his office spends defending abortion restrictions seems to support that assertion.
An AP News investigation from last year found that the Attorney General’s Office had spent $1.14 million in four years on outside private attorneys to help the state defend various abortion restrictions from legal challenges.
A spokesperson for Attorney General Jeff Landry’s office confirmed The Lens’ interpretation of House Bill 484, but didn’t answer questions about how it plans to utilize the new authority.
House Bill 484 was sponsored by Rep. Raymond Crews, Republican of Bossier City. House Bill 133 was sponsored by Rep. Frank Hoffmann, Republican of West Monroe. Neither responded to requests for comment.
“Then why are we not requiring this of all physicians?”
The other two pieces of legislation, Senate Bills 238 and 221, were both sponsored by Sen. Beth Mizell, Republican of Franklinton, who did not respond to requests for comment.
Senate Bill 221 is an expansion of the state’s “Women’s Right to Know” law. Already, that law requires clinics to provide a wide array of information to women seeking abortion, including “the probable anatomical and physiological characteristics of the unborn child.”
Currently, that information must be relayed to the patient orally. This legislation requires the information to be provided in written form.
The bill also expands what needs to be included in this dossier to include information about the performing physician, such as their disciplinary record, details about their malpractice insurance, and the location and specialty of their residency. Schilling said the law is intended to scare women seeking abortions.
“When you’re getting this written dossier from your doctor, which has never happened before, it’s going to make you think that you should be concerned about safety when in fact an abortion is one of the safest procedures you could ever have,” she said. “If this is just about transparency, then why are we not requiring this of all physicians?”
According to the bill text, the extra transparency laws are necessary because abortion clinics are more secretive.
“Louisiana outpatient abortion facilities actively work to conceal the identities and misconduct of abortion providers,” the bill says.
Advocates, however, say the extra layer of confidentiality is necessary because of the physical and psychological risks of working at a clinic. According to a 2016 ruling in federal district court, the Shreveport abortion clinic has faced several attacks including by a man with a sledgehammer, an arsonist with a Molotov cocktail, and another attacker who drilled a hole in its wall and poured acid through it.
As for the danger women face during abortion procedures, Schilling says the risks are overstated by anti-abortion lawmakers.
“The risk of death carrying of pregnancy to term is 14 times higher than it is to have an abortion,” she said. “So if there’s a health and safety risk, why are you only providing this of physicians performing a very safe procedure and not for women who are actually in far greater danger with similar physicians.”
Senate Bill 238, meanwhile, expands the list of people required to report potential cases of human trafficking. This requirement already exists for all Louisiana physicians, but the new law extends it to “outpatient abortion facility staff member … who diagnoses, examines, or treats a child or his family.”
“Traffickers are using abortion facilities to erase their problems,” Clapper said. “And it’s important that abortion facilities are a point of rescue.”
Schilling said that the new requirements create a precarious mission for staff members that do interact with patients, but not for long enough to catch the signs of potential abuse. Currently, the law places the same requirement on any “hospital staff member.”
She said that just like the “individual duty” aspect of the new reporting requirements established in House Bill 484, the bills will dissuade people from working at clinics, which, she said, already struggle to find willing job applicants.
“It puts clinic staff in a really bad position, where they’re not going to have enough information to comply,” she said. “But if they don’t they can face criminal penalties.”