Judge says doctors can perform abortions while seeking hospital privileges

A Baton Rouge federal judge issued a temporary restraining order late Sunday evening that stops the enforcement of a new abortion law set to take effect Monday that requires abortion clinic doctors to have admitting privileges at a nearby hospital.

The order, granted by U.S. District Judge John deGravelles, allows the clinics to remain open while doctors await approval of admitting privileges at a hospital within 30 miles.

The restraining order will be in effect until a hearing, which deGravelles said would be set within 30 days.

In his ruling issued about 8 p.m. Sunday, deGravelles noted that three of the four doctors participating in the suit, two of whom are not plaintiffs, have filed for admitting privileges with hospitals within 30 miles of their clinics, but have yet to hear back on those applications.

DeGravelles determined that Act 620 will be allowed to take effect Monday but doctors will not be subject to the penalties and sanctions allowed in the statute for practicing without the “relevant admitting privileges during the application process.”

“Plaintiffs will be allowed to operate lawfully while continuing their efforts to obtain privileges,” he wrote.

S. Kyle Duncan, an attorney representing the state Department of Health and Hospitals, called the ruling a win for the state.

He said he was pleased that it falls in line with what DHH had already promised to do — not enforce the sanctions against the physicians awaiting hospital approval for admitting privileges.

The head of a national woman’s rights group said late Sunday that the law was designed to shutter abortion clinics across the state.

“Today’s ruling ensures Louisiana women are safe from an underhanded law that seeks to strip them of their health and rights,” said Nancy Northup, president and CEO of the Center for Reproductive Rights, of the decision.

The doctors in the suit argued the law violated their rights to due process because they would have been penalized for not complying with the law while they were working to comply with the law.

Attorneys for three abortion clinics in Shreveport, Bossier City and Metairie and two unidentified doctors — one working in Shreveport and the other splitting time between Bossier City and Metairie — filed the lawsuit Aug. 22 arguing that doctors didn’t have adequate time to apply and receive responses from hospitals and that the law, Act 620, could close the state’s five abortion clinics.

The suit argued that the 81 days the law gave doctors to get admitting privileges and clinics to comply was woefully inadequate. It called forcing doctors to gain admitting privileges at any hospital within 30 miles in that amount of time “an impossible task” since most hospitals take between 90 days and seven months to decide on whether to grant a doctor admitting privileges.

Any doctor not complying with the new law faces a fine of up to $4,000 and the clinic the doctor works out could lose its license.

In court filings Thursday, state Department of Health and Hospitals Secretary Kathy Kleibert said she has “no intention” of enforcing the new law against physicians who applied for admitting privileges during the act’s grace period, but who have not received answers on those applications. The grace period ran from June 12 to Sept. 1.

The law received overwhelming support in the 2014 legislative session and was pushed by anti-abortion advocates who said the law was needed to ensure proper care for women if they have complications from the procedures.

Opponents of the law have said the requirement is medically unnecessary and limits abortion access.

The new law would likely close three of the state’s five abortion clinics, leaving one in Shreveport and one in Bossier City, both more than 300 miles from New Orleans. The three other clinics are in Baton Rouge, New Orleans and Metairie.

Recently, there were two conflicting rulings from different panels of the 5th U.S. Circuit Court of Appeals on laws with similar restrictions in Texas and Mississippi. The New Orleans-based appellate court hears challenges of district court judges’ decisions in Louisiana, Texas and Mississippi.

In July, a 5th Circuit panel upheld challenges to the admitting privileges law in Mississippi that would have shut down the state’s only abortion clinic. In a 2-1 vote, the panel said Mississippi lawmakers took the new rules too far and that the law “effectively extinguishes” a woman’s right to choose “within Mississippi’s borders.”

In March, a different 5th Circuit panel upheld nearly identical restrictions in Texas, saying the requirement passed constitutional muster. But the panel said the government defendants couldn’t enforce the admitting-privileges law against a doctor who applied for those privileges during the Texas law’s grace period but had not yet received a response before the law’s effective date.

Duncan, the DHH attorney, pointed to this ruling as the reason the state is confident in its case going forward.

On Friday, a federal judge threw out other new restrictions in a Texas law on abortion clinics that would require the facilities to meet hospital-level operating standards such as mandatory air filtration systems, which are considered expensive. Texas Attorney General Greg Abbott said he plans to appeal the decision.

The Texas law was the model for Louisiana’s law, Kliebert has said in court filings.

The admitting-privileges requirement has been challenged in other states.