Abortion Clinics Are Too Early in Licensing Fight

(CN) - Louisiana abortion clinics cannot yet challenge a rule that would immediately suspend their licenses for minor state-law violations, the 5th Circuit ruled.

A 2010 amendment to Louisiana's Outpatient Abortion Facility Licensing Law (Act 490) provides that the Louisiana Health and Hospitals Department may immediately suspend an abortion clinic's license if the secretary finds the licensee in violation of any regulation.

The original law required the finding of "a substantial failure ... to comply," and it let licensees appeal to a district court. The amended version, however, limited a licensee's appellate options to the health department.

Choice and four other abortion clinics filed a pre-emptive challenge to the amendment, claiming that it violates their rights to due process and equal protection.

A federal judge dismissed the case, however, after finding that the clinics could not prove hardship under the amended act.

The Atlanta-based federal appeals court affirmed last week, voting 2-1 that the clinics cannot yet show whether they have been damaged by the act.

"Choice argues that it can satisfy the hardship-prong of the ripeness inquiry because it has been 'forced to operate in a heightened state of vigilance' in which it is required to 'undertake all steps possible to try to predict which laws the department will enforce and how it will interpret them, and try to come into compliance with those expectations in order to avoid closure," Judge Priscilla Owen wrote for the majority.

Choice will not suffer a hardship if the court withholds judgment until the clinic runs afoul of the secretary, according to the decision.

"If, in the future, the secretary issues an immediate suspension of Choice's license based on a determination that Choice is in violation of the law and that the violation 'pose[s] an imminent or immediate threat to the health, welfare, or safety of a client or patient,' Choice may challenge Act 490's constitutionality," Owens wrote.

In dissent, Judge James Dennis said that "the majority's clearest error is its failure to appreciate the obvious legal harms that the terms of Act 490 unambiguously impose on Louisiana abortion providers."

"The coercive impact of Act 490 is already imposing on plaintiffs the burden of attempting to adjust their business practices in response to being uniquely exposed to exceptionally severe penalties for even minor violations of any state or federal law or regulation," Dennis wrote.

"Therefore, the majority is wrong to conclude that the compliance burdens on plaintiffs do not constitute a cognizable hardship," he added.

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