NEW ORLEANS (CN) — The Fifth Circuit sided 2-1 Wednesday with a Louisiana law requiring doctors who perform abortions to have credentials to enter nearby hospitals — a rule that opponents say could limit abortions to just one doctor at one clinic.
The ruling reversed a finding by a federal judge in Baton Rouge that Act 620 is unconstitutional.
U.S. District Judge John W. deGravelles last year killed the admitting restriction rule, 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 in the summer of 2016 reversed a Fifth Circuit ruling that upheld the Texas admitting privileges rule, a case known as Whole Woman’s Health v. Hellerstedt.
The Fifth Circuit’s Wednesday ruling said the facts in the Louisiana case are “remarkably different” from those in Whole Women’s Health, because the situation in Texas is different than in Louisiana.
“Unlike in Texas,” the majority ruled, “the Act does not impose a substantial burden on a large fraction of women.” The 79-page ruling estimates 30 percent or less of Louisiana women will be affected, and suggests that at worst one doctor at the one clinic would be forced to quit performing abortions. (With a total population of 4.7 million, 30 percent of Louisiana women comes to roughly 705,000 women and girls.)
Also, U.S. Circuit Judge Jerry Smith wrote for the majority, the Louisiana rule, unlike the one in Texas, is unlikely to force any clinics to close. “Here, only one doctor at one clinic is currently unable to obtain privileges; there is no evidence than any of the clinics will close as a result of the Act,” he wrote.
Under Act 620, doctors who perform abortions must have credentials necessary to accompany patients to a hospital within 30 miles of the clinic.
Opponents say Act 620 would make it difficult or impossible for most women in Louisiana to obtain an abortion. They say it could result in 70 percent of women statewide not having access to abortion and that the only operating clinic would be in New Orleans.
“In addition to the concern for maternal health … Louisiana has an underlying interest in protecting unborn life,” Smith wrote, joined by U.S. Circuit Judge Edith Brown Clement.
Writing in dissent, U.S. Circuit Judge Patrick E. Higginbotham said Act 620 creates a substantial obstacle for women seeking abortion, in violation of the Supreme Court’s 1992 ruling in Planned Parenthood v. Casey that “‘unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden’ on the exercise of that right.”
In an obvious reference to the political controversy surrounding the subject, Higginbotham wrote: “It is apparent that when abortion comes on stage it shadows the role of settled judicial rules.”
He added in a footnote that the Baton Rouge court “emphasize(d) that the state did not proffer any evidence that patients obtain better outcomes when their physicians have admitting privileges nor could the state point to an instance in which admitting privileges would have helped a woman obtain better treatment.”
The record provides ample evidence for Judge deGravelles ruling that Act 620 “‘confers only minimal, at best, health benefits for women seeking abortions,’” Higginbotham wrote in his dissent, which occupies 34 pages of the 79-page ruling.
Louisiana Attorney General Jeff Landry, a Republican, applauded the majority opinion, calling Act 620 “Louisiana’s pro-life and pro-woman” law.
“The Fifth Circuit affirmed what we have repeatedly said: Our law is both factually and legally different from the Texas law that the Supreme Court ruled against in June 2016,” Landry’s office said in a statement.
Attorneys for June Medical Services et al., who oppose Act 620, did not immediately return emails seeking comment Wednesday evening.
Smith and Higginbotham were appointed to the Fifth Circuit by President Ronald Reagan, Clement by President George H.W. Bush.