Louisiana Abortion Limits in Force Pending Appeal

(CN) - The Fifth Circuit stayed a lower court ruling that Louisiana cannot enforce a new law tightening restrictions on abortion pending an appeal.

On Feb. 16, U.S. District Judge John deGrabelles held that the law, which requires that physicians who perform outpatient abortions to have admitting privileges at a nearby hospital, was unconstitutional on its face because it placed an undue burden on women seeking an abortion.

During a bench trial, supporters of the law, which former Gov. Bobby Jindal signed into law on June 12, 2014, said it is only intended to protect women. Opponents responded by saying enforcement of the law would close four out five clinics in Louisiana currently offering abortion services.

Judge deGrabelles enjoined the state from enforcing the law, and also rejected Louisiana's request for a temporary stay pending its appeal.

Louisiana immediately filed an emergency appeal, asking the Fifth Circuit to rule on the motion by 5 p.m. on Feb. 26.

On Tuesday, a three-judge Fifth Circuit panel granted Louisiana's request for a stay pending appeal, finding fault with the mathematical assumptions undergirding deGrabelles' undue burden determination, and further finding fault with his belief that the state was unlikely to succeed on the merits of the case.

The Fifth Circuit has twice before considered challenges to a nearly identical admitting-privileges requirement recently enacted in Texas, and decided to stay an injunction after concluding that the state was likely to succeed on the merits by showing the plaintiffs had not proven the requirement placed an undue burden on women.

In that case, wrote U.S. Circuit Judge Jennifer Walker Elrod on behalf of the panel, "we reversed the district court and permitted the law to go into effect because the plaintiffs had not demonstrated that the law placed an undue burden on a large fraction of women."

Figuring significantly in the panel's decision was that while the state attacked deGrabelles' sua sponte calculations, the plaintiffs never seriously contested the state's position, which Elrod says she found Puzzling.

"Likewise, they fail to grapple with this court's prior precedent upholding similar admitting-privileges requirements against facial challenges," she wrote. "This is so even though Plaintiffs sought and were granted additional time to respond.

"Instead, Plaintiffs argue that the large-fraction test, which is the basis for the injunction they ask us to uphold, is "irrelevant," Elrod wrote.

As a result the panel concluded, "Louisiana is likely to prevail in its argument that Plaintiffs failed to establish an undue burden on women seeking abortions or that the Act creates a substantial obstacle in the path of a large fraction of women seeking an abortion."

The Center for Reproductive Rights and the Louisiana women's health care providers who sued the state to block the law said they now plan to seek emergency relief from the U.S. Supreme Court.

"Today's ruling thrusts Louisiana into a reproductive health care crisis, where women will face limited safe and legal options when they've made the decision to end a pregnancy," said Nancy Northup, president and CEO of the Center for Reproductive Rights.

"In exactly one week, we will be arguing before the U.S. Supreme Court to put an end to the kinds of unjust and unconstitutional attacks on women's rights and health that we are seeing play out right now in Louisiana," she continued.

"Whether in Louisiana, Texas, or elsewhere, women should not be forced to run to court year after year to protect their fundamental rights. It's time for the U.S. Supreme Court to make it clear that politicians cannot sneak around the Constitution to rob women of their right to safe and legal abortion," she added. "We will immediately seek emergency relief from the Supreme Court so these clinics are able to reopen and continue serving the women of Louisiana."

Louisiana Attorney General Jeff Landry applauded the Fifth Circuit ruling, saying in a written statement that it halted "the erroneous ruling" of the district court, and will "allow Louisiana's pro-life and pro-woman admitting privileges law to go into effect."

"Act 620 is a reasonable, common-sense safety measure," Landry said. "Anyone who has outpatient surgery would expect her doctor to admit her to a hospital in the event of complications; women seeking abortions should have the same assurance of prompt care."

"The Fifth Circuit agreed with Louisiana's argument that the District Court ignored legal precedent and evidence showing this law is a legitimate way of protecting the health and safety of Louisiana women," he added. "Today is a victory for Louisiana, whose elected legislative representatives overwhelmingly passed Act 620."

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