Following the Whole Woman’s Health v. Hellerstedt Supreme Court decision three weeks ago, and several subsequent wins for reproductive justice supporters, the frontline of the legal battle for abortion access has shifted to Louisiana.
After the Whole Woman’s Health victory, at the end of June, the Supreme Court declined to hear Currier v. Jackson Women’s Health Organization, which resulted in the last abortion clinic in Mississippi continuing to remain open. The Court also declined to hear Wisconsin’s attempt to overturn a lower court decision blocking that state’s version of the Texas law with its undue burden of admitting privileges provision, a.k.a. the Texas clinic shutdown law. Meanwhile, the attorney general of Alabama dropped that state’s suit to enforce the disingenuously named “Women’s Health and Safety Act,” and a federal judge blocked two additional Alabama laws that would have closed the state’s two busiest clinics and denied access to second trimester abortion care.
The stakes in Louisiana are similar to those in states that have seen victories in recent weeks. The Louisiana legislature used a special session — purportedly called to address the state’s budget crisis — to pass seven abortion-restricting laws, a record for 2016. The Center for Reproductive Rights (CRR) has filed suit against all seven, hoping to prevent a situation like that in Texas where half of the state’s clinics closed as restrictions were being challenged. If the laws take effect, Louisiana could easily end up with just one or two clinics, an especially dangerous prospect in a part of the country where neighboring states can’t pick up the slack, even for those patients able to travel hundreds of miles to another provider.
CRR is challenging the laws as unconstitutional, both individually and collectively, saying that they create an undue burden on patients and providers throughout the state.
“Louisiana politicians are trying to do what the US Supreme Court just ruled decisively they cannot: burying women’s right to safe and legal abortion under an avalanche of unjustified and burdensome restrictions,” CRR president and CEO Nancy Northup said in a press release.
Northup referenced the affirmation of 1973’s Roe v. Wade decision striking down abortion criminalization laws, as well as Justice Stephen Breyer’s Whole Woman’s Health opinion last month, which strengthened the vaguely worded “undue burden” concept of Planned Parenthood v. Casey from 1992. Abortion advocates had been waiting for a case that would more clearly outline what Justice Sandra Day O’Connor meant when she wrote that the state could regulate the procedure up to the point the regulations became unnecessarily burdensome. Breyer penned an opinion that did just that by attacking the smokescreen of “protecting women’s health” used by Texas, saying that the state’s new law does not in fact provide any health benefits. That argument is now being used to challenge laws beyond the scope of the admitting privileges and ambulatory surgical center provisions of the Texas law.
“We have found nothing in Texas’ record evidence that shows that, compared to prior law (which required a ‘working arrangement’ with a doctor with admitting privileges), the new law advanced Texas’ legitimate interest in protecting women’s health,” Breyer wrote in the opinion. “We add that, when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.”
Breyer has overtly stated a requirement that states imposing oppressive restrictions on their populations while claiming the false mantle of “for the health of patients” must prove that the laws actually benefit someone’s — anyone’s — health to be constitutional. This definitive criterion is one of the reasons the Whole Woman’s Health decision will be expected by advocates to apply beyond the admitting privileges requirement and million-dollar building regulations struck down by the Supreme Court.
According to an analysis by the reproductive health outlet Rewire, none of the new laws — the Louisiana ‘Unborn Child’ Protection from ‘Dismemberment Abortion’ Act (HB 1081), the Louisiana Genetic Abnormalities Abortion Ban (HB 1019), the Louisiana Bill Prohibiting Harvesting of Aborted Fetal Remains (HB 815), the Louisiana Bill Prohibiting Harvesting of Aborted Fetal Tissue (SB 33), the Louisiana Bill Extending Abortion Procedure Waiting Period (HB 386), the Louisiana Bill Regarding Qualifications of Physicians Who Perform Abortions (HB 488), and the Louisiana Bill Prohibiting Public Funding of Abortion (HB 606) — would do anything but subvert best medical practices and put abortion care even further out of reach for much of the state.
The majority of the new laws are set to go into effect on August 1, so CRR has petitioned for immediate action.
“This law creates a web of red tape that women and their doctors cannot hope to escape, driving safe and legal care out of reach for many Louisiana women and putting their health and well-being at risk,” said Northup. “We are asking the district court to immediately block these unconstitutional laws.”
Louisiana patients seeking an abortion already face a number of hurdles, including a mandatory 24-hour delay and a ban on abortion after 20 weeks of pregnancy. The 2016 set of laws would triple the waiting period to 72 hours, making Louisiana the sixth state, along with Missouri, North Carolina, Oklahoma, South Dakota and Utah to impose such a significant and expensive barrier.
The Genetic Abnormalities Abortion Ban and ban on fetal tissue “harvesting” are reminiscent of problematic parts of Indiana’s House Enrolled Act 1337, signed recently by the state’s governor and soon-to-be GOP vice presidential nominee Mike Pence. Policing people’s personal decisions about their lives, families and medical health — as well as blocking research and regulating how remains are disposed of — do not serve the public interest. Neither does outlawing the safest, most common method of second trimester abortion, dilation and evacuation (D&E). This remains an important procedure even with the 20-week ban in place, as D&E is often used to complete miscarriages and to save the life of a pregnant person in emergencies.
According to Rewire analysts, the Bill Prohibiting Harvesting of Aborted Fetal Remains is a “defacto medication abortion ban.” The law would make it impossible to administer medication abortion, an FDA-approved procedure which involves directing patients to take the first medication in their doctor’s office and the second medication at home where they can miscarry safely and privately.
Because the state of Louisiana already doesn’t publicly fund abortions, and the Hyde Amendment prohibits Medicaid recipients from using their insurance to terminate pregnancies, the Bill Prohibiting Public Funding of Abortion would only punish low-income patients who use clinics that receive funding for providing services other than abortion. No connection of any kind would be allowed between public funds and entities that are associated with abortion provision.
In its press release about the lawsuit, CRR called this slate of laws “unprecedented” and identified the populations that will be most affected by these onerous restrictions:
“Women of color, low-income women, rural women, and women in abusive relationships already face challenges when they seek health care services, and waiting periods only increase these barriers. Additionally, mandatory waiting periods can lead a woman to delay the abortion to later in pregnancy, which can increase the risks of the otherwise extremely safe procedure.”
The new laws further stigmatize the 10,000 Louisiana residents who seek abortion care annually by implying that patients and doctors cannot be trusted to know what’s best in this arena. The laws single out this particular procedure to be specifically regulated by the government, despite it being safe and common. They also increase cost by forcing patients to make additional trips to the clinic, which means additional travel time, transportation costs, child care, and time off work — often unpaid.
According to Amy Irvin, executive director of the New Orleans Abortion Fund (NOAF), abortion access is already significantly hindered by restrictions that preceded Louisiana’s seven new laws. These burdens drive an increasing number of women to seek help from NOAF.
“The New Orleans Abortion Fund, which provides financial assistance to women seeking abortion care, routinely receives 25-30 calls each week from women seeking information and financial help,” Irvin told Truthout.
According to the US Census Bureau, over half-a-million women between the ages of 16 and 64 live below the poverty line in Louisiana, a statistic that exacerbates the challenges of seeking care. Because of the Hyde Amendment’s prohibition on federal insurance programs like Medicaid covering abortion care, patients living in poverty are already expected to pay out of pocket. Irvin and others fear that if the new laws are allowed to take effect, the outcome could be disastrous for many.
“There are nearly 1 million women of reproductive age in Louisiana; some 10,000 decided to terminate a pregnancy last year. Yet, there are just four abortion providers in the state, [and] only two clinics with providers with admitting privileges,” said Irvin. “Current restrictions, including a 24-hour waiting period, mandatory face-to-face counseling, parental consent laws, and a 20-week ban already make accessing abortion care difficult for most women… [T]he implementation of the [currently enjoined] admitting privileges law and the legislation signed into law this year would have had a devastating impact on abortion access in Louisiana.”
Irvin says that her organization has helped approximately 600 patients since 2013, but the demand is greater than it can meet. In order to truly end the abortion access crisis, proactive legislation and an end to the Hyde Amendment are needed. This could be achieved in part through the passage of the Equal Access to Abortion Coverage in Health Insurance, or EACH Woman Act, which would nullify existing bans on abortion coverage at the state and federal levels.
“As members of the All* Above All coalition, NOAF supports passage of WHPA [Women’s Health Protection Act] and the EACH Woman Act, and works to educate our members and supporters about the harm imposed by the Hyde Amendment,” Irvin said.