Third Challenge to Louisiana Abortion Law

BATON ROUGE, La. (CN) - A third challenge has been filed to Louisiana's new abortion law. Five outpatient clincis and a doctor say Louisiana's "zero tolerance policy" allows state officials to suspend or revoke their licenses "based on any violation of any state or federal law or regulation" without warning, in violation of due process. They say the law intends "to close down outpatient abortion facilities regardless of whether those facilities are operating safely."

The providers and a John Doe doctor sued Bruce D. Greenstein, secretary of Louisiana's Department of Health and Hospitals, challenging his authority to suspend their licenses without notification. An identical suit was filed 2 months ago in the Federal Court in New Orleans.

In a footnote, the new complaint states that because of a motion of improper venue filed by the defendant on Nov. 10, seeking dismissal or change of venue, the plaintiffs changed venue to save time.

"Although plaintiffs dispute defendant's assertions regarding the inappropriateness of venue in the Eastern District of Louisiana, plaintiffs were willing to move the action rather than expend time and resources contesting issues of venue. Thus, on November 17, 2010, plaintiffs filed a notice pursuant to Fed. R. Civ. Proc. 41 (a) (1) (A) (i) voluntarily dismissing the action in the Eastern District of Louisiana without prejudice and are hereby immediately refiling this action in the United States District Court for the Middle District of Louisiana," the footnote states.

The clinics say a newly enacted amendment, Louisiana Act 490, "makes it likely that the Department will suspend or revoke many or all of the Abortion Facility Plaintiffs' licenses in the foreseeable future."

They say the "zero tolerance policy" was adopted to "close down outpatient abortion facilities regardless of whether those facilities are operating safely."

Under Louisiana Act 490, Greenstein no longer has to give outpatient abortion providers "notice of alleged violations and an opportunity to correct them before taking action to suspend or revoke a license," the complaint states.

Outpatient abortion services were governed by the same Louisiana laws that apply to hospitals, until the state enacted Act 490 on June 22.

Louisiana has seven outpatient abortion facilities, five of which are challenging the new amendment.

"The other two are currently subject to license revocation proceedings initiated by the Department," according to the complaint.

The abortion providers say they fear being shut down after inspections, partly because the state is vague about what constitutes a violation and "applies statutes and regulations inconsistently."

The "potentially applicable state laws or regulations are practically innumerable," the plaintiffs claim. "On the face of the statute, a violation of any one of those laws or regulations provides grounds for the Department to revoke permanently the license of an outpatient abortion facility in Louisiana."

Under the zero tolerance policy, "an outpatient abortion facility could be shut down and kept shut down during the pendency of the appeal for any violation that the Secretary deems to pose an imminent or immediate threat even if the threat has been removed," the complaint states.

Louisiana has a long history of enacting amendments to make abortion illegal or extremely inconvenient.

Opponents to Louisiana's increasingly stringent policies on abortion say the policies in effect prevent women from having access to competent doctors and clinics.

In Louisiana, abortion is treated differently from any other medical procedure. Abortions are not covered by malpractice insurance, and a woman has 10 years after the procedure occurs to sue for damages to her unborn child, according to a 2000 ruling, Okpalobi v. Foster, which makes the performance of any abortion, even if given with consent, punishable by unlimited money damages that can be sought for up to 10 years after the abortion has been performed, even if no harm has come from the procedure.

Because the law is unrelated to issues of medical malpractice, it does not matter if the abortion was skillfully performed and resulted in no harm to the woman. The damages sought are not in compensation for the woman's health, but for the lost life of the baby.

In 2006 the Louisiana Supreme Court allowed "Choose Life" license plates though it forbade pro-choice plates. According to a report from the Center for Reproductive Rights, "One hundred percent of the $25 fee paid by motorists for the specialty plates is funneled to anti-choice nonprofit organizations."

"State lawmakers could have resolved this issue simply and fairly by offering pro-choice plates, but they specifically refused. If that's not state-sponsored censorship, then I don't know what is,"' Nancy Northup, president of the Center for Reproductive Rights, said in the report.

Pro-Life Louisiana's website states that the "Louisiana Choose Life License Plate has distributed $104,421 to pro-life pregnancy centers and adoption agencies since its inception!"

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