Louisiana Abortion Restrictions Argued at Fifth Circuit

NEW ORLEANS (CN) — Attorneys for Louisiana asked the Fifth Circuit Thursday to uphold a state law requiring doctors who perform abortions to have admitting privileges at a nearby hospital — a law that opponents say could limit abortions statewide to one doctor at one clinic.

U.S. District Judge John W. deGravelles in Baton Rouge last year killed the statewide admitting restriction, saying it creates a burden, especially for poor women. He cited a U.S. Supreme Court ruling against a similar law in Texas. The Supreme Court ruling in the summer of 2016 reversed a Fifth Circuit ruling that upheld the Texas admitting privileges rule.

Elizabeth Murrill, representing Louisiana, said during Thursday’s hearing that the admitting privileges provision is not particularly burdensome to women. She said Texas is five times larger than Louisiana and has seven times more abortions each year, so the Supreme Court ruling for Texas is not comparable to Louisiana.

Murrill said that of the five doctors who perform abortions in Louisiana, four do not have admitting privileges within 30 miles of the clinic where they work, but “none of them were absolutely denied privileges.”

In some cases where admitting privileges have not been granted, Murrill said, the hospital simply did not reply to the request.

Opponents of the law say there is no proof the rule will make abortions safer, but it will increase waiting times for women and is likely to push abortions back from first to second trimesters, if women are able to get them at all.

They say the law could result in a single doctor performing abortions at a single clinic for the entire state.

Marc Hearron, representing the plaintiff clinics and doctors, told the Fifth Circuit panel on Thursday that if the act is allowed to stand, most Louisiana clinics will be forced to close.

In that case, Hearron said, 70 percent of women statewide would not have access to abortion and the only operating clinic would be in New Orleans. The only doctor able to perform abortions then would be “Doe 5.”

Fifth Circuit Judge Edith Brown Clement, a George W. Bush appointment, questioned Hearron’s statistics.

“That’s not what opposing counsel just said,” Clement said.

Hearron replied: “Even if you accept the state’s argument that Doe 2 and Doe 3 [abortion providers] could obtain privileges, that would still leave just half of the doctors.” Of the doctors that would remain, at least one performs abortions only half-time, Hearron said.

He said that even assuming that the two doctors with admitting privileges — Doe 3 and Doe 5 — continue to perform abortions, they could perform only 4,500 abortions per year. In a typical year, 10,000 abortions are performed in Louisiana.

“Fifty-five percent of Louisiana women would not be able to get an abortion,” Hearron said.

He added that “the record here is substantially the same” as the Texas argument the U.S. Supreme Court rejected.

Fifth Circuit Judge Jerry E. Smith, a Reagan appointee, asked Hearron if he would “address the district court’s view that Louisiana as a state is hostile to abortion?”

“Does that have any relevance?” Smith asked.

Hearron said yes, it does.

Judge Clement asked: “Wouldn’t a doctor with admitting privileges be a better doctor?”

Hearron said admitting privileges are administered for reasons other than how well a doctor performs, and it was for that reason that the district court found that admitting privileges are not an indication of how skilled a doctor is at medicine.

The admitting privileges rule was signed into law in 2014 by Governor Bobby Jindal, as Louisiana Act 620.

Judge deGravelles, in a previous preliminary opinion, had barred the state from enforcing the rule, but the Fifth Circuit reversed.

DeGravelles wrote in his 116-page ruling of April 26, 2017 that “the Supreme Court has now clarified” that “evidence considering the ‘real-world context of abortion patients’ poverty and transportation challenges, providers’ fear of anti-abortion violence, pre-existing regulations, and other obstacles to abortion access’ were not previously considered and should have been.

“In short,” DeGravelles wrote, “Act 620 would do little or nothing for women’s health, but rather would create impediments to abortions, with especially high barriers set before poor, rural, and disadvantaged women. These burdens would have the effect of increasing health risks among the state’s poorer women. The burdens imposed by Act 620 on abortion outweigh the benefits, particularly given this Court’s finding that the Act would do little, if anything, to promote women’s health.”

Judge Patrick E. Higginbotham also sat on Thursday’s panel.

The judges did not indicate how or when they will rule.

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