New law likely to face lengthy court battle
Two things seem clear about the abortion law that Louisiana just adopted: Whether or not it was intended to limit access to abortion services, it’s likely to do so quite dramatically. And any chance of overturning it in the courts is extremely uncertain.
Three or perhaps four of the state’s five abortion clinics likely will have to cease operating. Fewer doctors in private practice who perform abortions may be able to continue doing so, particularly those in rural areas. And with most of Louisiana’s neighbors having passed similar laws, the opportunity to drive across state lines for the procedure may disappear.
All of those factors will make for a grinding court battle that pro-abortion rights advocates expect will eventually reach the Supreme Court, though getting a final decision could take years and most of the advocates don’t sound upbeat about the odds of a ruling in their favor.
“I would be very nervous,” said Elizabeth Nash, state issues director at the Guttmacher Institute, a pro-abortion rights group. “Who wouldn’t be if you support abortion rights? The Supreme Court has become much more conservative over the past 10 years, and there are members of the court who are very outspoken against abortion.”
What’s at stake is whether a broad swath of the South becomes essentially a no-abortion zone, largely because of new laws requiring that doctors who perform the procedure have admitting privileges at a local hospital.
Texas, Tennessee, Alabama and Mississippi all have passed laws to that effect, along with North Dakota, Utah and Wisconsin. Implementation is hung up in Alabama, Mississippi and Wisconsin by lawsuits challenging the new restrictions on the grounds that they represent an “undue burden” on a woman’s right to an abortion.
In Louisiana, the new law requires that doctors performing abortions have “active” admitting privileges at a hospital within 30 miles, a term that has caused some confusion.
Of the five registered abortion clinics in the state, only two already have doctors with privileges, one in Shreveport and another in neighboring Bossier. Ellie Schilling, a New Orleans attorney who provides legal advice for the state’s clinics, said the doctor in Shreveport just happened to have the necessary privileges because his private practice, which provides more than just abortion services, often involves admitting patients to the hospital.
But the clinic in Bossier, Schilling said, has only “courtesy” privileges, which are usually extended to specialists who see patients in the hospital less often. It’s unclear whether that designation will be enough to comply with the law.
Physicians at the other clinics — the Women’s Health Care Center on General Pershing Street in New Orleans, the Causeway Medical Clinic near the Lakeside Shopping Center in Metairie and the Delta Clinic on Colonial Drive in Baton Rouge — don’t have privileges at all and aren’t hopeful about getting them, Schilling said.
A Planned Parenthood location under construction on South Claiborne Avenue in New Orleans also would have offered abortions, but it’s not clear if it will be able to. Jewel Bush, a local spokeswoman for the group, would say only, “We’re working to provide the full range of women’s reproductive needs.”
For hospitals, extending admitting privileges typically amounts to a business decision. They only allow it if a particular doctor can guarantee he will fill a certain number of beds. Abortion doctors aren’t great candidates because they rarely admit patients to the hospital at all, especially given the low rate of complications for abortion procedures.
The politics of the issue could make it harder still. “A lot of religiously affiliated or state-affiliated hospitals will just refuse to grant an abortion provider privileges on the grounds that they don’t agree with the practice,” Schilling said. “And those that do often have to deal with protesters or threats, so many hospitals are going to feel like it isn’t worth the trouble.”
Abortions also may become less frequent outside of registered clinics in Louisiana. Under an older version of the law, a doctor in private practice could perform certain types of abortions without registering as a clinic by doing fewer than five of the procedures per month. Now the standard is five per year.
Any doctor intending to do more abortions than that would have to seek admitting privileges at a hospital within 30 miles, which may not be an option in rural areas.
Doctors who already work in hospitals could conceivably continue to perform abortions, although some hospitals won’t allow the procedure; many of them usually refer patients who request one to the clinics.
Most of the local hospitals or abortion clinics contacted for this article were not immediately available to respond or detail their practices, perhaps reflecting the dicey political atmosphere surrounding the issue.
Proponents of the new laws often lay emphasis on their desire to make abortions safer for women, rather than restrict access to the procedure. At the Legislature, state Rep. Katrina Jackson, D-Monroe, warned of women arriving at emergency rooms after “a botched abortion, hemorrhaging — and they have to examine her to know what’s going on.”
Other proponents have been more explicit about using the new laws as a tactic to restrict the practice in the first place. In an article Thursday, the New York Times quoted Tanya Britton, a board member for a group called Pro-Life Mississippi, as saying, “These incremental laws are part of a greater strategy to end abortion in our country.”
Opponents are more likely to see the latter motivation at work. They dismiss concerns about safety by pointing out that fewer than 1 percent of first-trimester abortions result in complications and that most women who do suffer a complication should be going to the nearest hospital, not the one where her abortion doctor happens to have privileges.
In any case, the argument is likely to move to the courts in Louisiana. It already has in other states.
In March, the U.S. 5th Circuit Court of Appeals, considered one of the most conservative circuit courts, decided to uphold a similar Texas law. And the 5th Circuit is where any Louisiana case will end up. So, pro-abortion rights advocates are counting on the Supreme Court to eventually take up the issue, which is likely to happen if another circuit court issues a contrary decision.