Fifth Circuit upholds Louisiana’s pro-life law, but state faces appeal

abortion emergency, complications

UPDATE, 2/4/19: The Washington Examiner reports, “Supreme Court Justice Samuel Alito has temporarily blocked abortion restrictions in Louisiana from going into effect, pushing off the question for another week as to whether the high court will soon be forced to weigh in on the issue of abortion rights.” The stay is in effect until February 7. Alito pointed out, “This order does not reflect any view regarding the merits of the petition for a writ of certiorari that applicants represent they will file.”

1/30/19: A Louisiana abortion facility is asking the Supreme Court to halt a lower court ruling that upheld a Louisiana law requiring abortionists to have admitting privileges at a local hospital. The challengers — the Center for Reproductive Rights, the Hope Medical Group for Women, and two abortionists — claim that upholding the law would leave only one abortionist to practice in the state. In order to file petition for review, plantiffs have appealed to the Supreme Court asking for stay so that the state cannot enforce the law. The state has two days to respond, according to Louisiana currently has three abortion clinics that commit about 9,000 abortions per year.

The law, 2014 Act 620, was authored by Democratic Representative Katrina Jackson. According to Louisiana Right to Life, Jackson reportedly heard the news of the lower court’s decision while in Washington, D.C., attending the March for Life, and said: “The 5th Circuit has spoken today, providing its final word on Act 620 that protects the health and safety of women in Louisiana. I look forward to this law, which was supported by a overwhelming bipartisan majority of my colleagues, going into effect.”

Louisiana Right to Life also weighed in, saying in a press release: “Abortion facilities should not receive special loopholes opting them out of requirements that apply to all other outpatient surgical facilities.”

READ: 32 medical societies support admitting privileges – so why are abortion advocates fighting them?

Opponents argue that the Supreme Court will likely take up the Louisiana case since it struck down a similar law in Texas in its 2016 Whole Woman’s Health v. Hellerstedt. In the 5-3 decision that saw now-retired Justice Anthony Kennedy as the swing vote, the Court ruled that the Texas law, which required abortion facilities to have ambulatory surgical center standards and abortionists to obtain hospital admitting privileges, placed an “undue burden” on women seeking abortions. The Fifth Circuit stated the law was both factually and legally different from the Texas case, in which Texas physicians would be unable to obtain privileges. “Because Texas doctors could not gain privileges, all but 8 of 40 clinics closed. Here, only one doctor at one clinic is currently unable to obtain privileges; there is no evidence that any of the clinics will close as a result of the Act,” said Judge Jerry Smith, writing the majority opinion. reports:

… [I]n their initial September ruling, the Fifth Circuit Court argued that “the records from Texas and Louisiana diverge in all relevant respects,” and that Louisiana’s law “results in a potential increase of 54 minutes at one of the state’s clinics for at most 30% of women. That is not a substantial burden at all, much less a substantial burden on a large fraction of women as is required to sustain a facial challenge.”

How the Supreme Court rules on this case could give some indication about the future of Roe v. Wade following Justice Kavanaugh’s confirmation. Some pro-abortion advocates fear this is a test case that, in the words of a ThinkProgress piece, may be “clear signal” to other circuit courts that they can “openly defy Supreme Court decisions protecting a right to abortion.”

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