Louisiana Can Tackle Abortion Via Insurance

(CN) - A law that may make it "prohibitively difficult" for abortion providers to obtain malpractice insurance in Louisiana is constitutional, the 5th Circuit ruled.

Attorneys for the doctors who challenged the law lamented the implications of this holding.

"The most troubling implications of this ruling are that its going to discourage physicians from providing abortion services because those services are going to expose them to unprecedented liability," Center for Reproductive Rights attorney Stephanie Toti said in an interview. "As a result women in need of those services are going to have a much more difficult time finding qualified providers."

In the 1970s, Louisiana suffered a lack of affordable medical-malpractice insurance, prompting the state to pass the Malpractice Act. The legislation created the Louisiana Patient's Compensation Fund, which fosters a stable market for insurance, and makes providers liable only for the first $100,000 of a patient's injuries.

The board also provides accused medical professionals a legally admissible opinion of medical experts regarding whether the provider violated the applicable standard of care.

In 1997, Louisiana amended the act to state that "any person who performs an abortion is liable to the mother of the unborn child for any damage occasioned or precipitated by the abortion." The amended statute says explicitly that a consent form cannot waive liability.

It imposes strict liability on abortion providers while simultaneously excluding them from the protections of the Malpractice Act.

In upholding the law Wednesday, a three-judge panel of the New Orleans-based federal appeals court reversed a federal judge's holding that the 1997 statute was unduly burdensome and would "significantly reduce the number of abortion providers in Louisiana."

Hope Medical Group and two physicians, their names abbreviated in the court record as K.P. and D.B., had brought challenged the law after the Patient's Compensation Board refused to cover the claim filed by a women who had undergone an abortion.

In denying coverage, the board found that the 1997 revisions makes the Malpractice Act "inapplicable to allegations involving an abortion."

"To prevail, the providers must demonstrate that the subsection is not 'rationally related to [a] legitimate governmental goal;' that the subsection is not rationally related to the promotion of informed consent and that hostility to abortion procedures is not a legitimate goal," Judge Patrick Higginbotham wrote for the appellate panel. "They have not done so, as subsection (C)(2) is rationally related to the promotion of informed consent - an unquestionably legitimate end."

The judges acknowledged that their ruling will make it difficult for abortion providers to buy malpractice insurance in Louisiana, but said the statute did not violate the equal protection clause.

"By subsection (C)(2), a healthcare provider sued under subsection (A) is not entitled to the benefits of the Malpractice Act," Higginbotham wrote. "This exemption may make it difficult - perhaps prohibitively difficult - for those providers to obtain the relevant insurance. But while this difficulty may result from subsection (A)'s cause of action, subsection (C)(2)'s limitation on the Malpractice Act is merely a 'means of unequal subsidization of abortion and other medical services.'"

Toti, the lawyer for the abortion providers, noted that the ruling "will have the immediate impact of subjecting providers to broad-based and unprecedented civil liability. It says to abortion providers in this area of the country that the federal courts are not a place where they can have their rights vindicated."

When asked if the plaintiffs will appeal, Toti said, "We're still considering our options."

Defense counsel did not respond to a request for comment.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit