Supreme Court Abortion

Anti-abortion rights demonstrators and Abortion rights demonstrators rally outside the Supreme Court, in Washington, Wednesday, March 4, 2020, as the court takes up the first major abortion case of the Trump era Wednesday, an election-year look at a Louisiana dispute that could reveal how willing the more conservative court is to roll back abortion rights. (AP Photo/Andrew Harnik)

Saying Louisiana politicians are trying to exploit the coronavirus pandemic to further their goals, a national reproductive rights group Tuesday asked federal court in Baton Rouge to immediately block the state’s efforts to close the state’s three abortion clinics.

“This is a shameful abuse of power,” said Nancy Northup, President & CEO of the Center for Reproductive Rights, based in New York City. “Louisiana has been trying for decades to end abortion.”

The Center represents the Hope Medical Group in Shreveport in this action as well as in another case involving nearby hospital admitting privileges for physicians who perform the pregnancy ending procedures. Depending on how the U.S. Supreme Court rules in the admitting privileges case, abortion clinics in Louisiana and other states could close.

Northup told reporters in a telephonic press conference that Louisiana Attorney General Jeff Landry and his anti-abortion allies apparently couldn’t wait for the Supreme Court decision, which was due in late May/early June before the pandemic, and targeted an abortion clinics through an interpretation of a March directive by the Louisiana Department of Health. She said Louisiana, and other states with strong anti-abortion restrictions, have long interpreted medical policies as reasons for limiting the procedure.

The health department directive limits nonemergency medical procedures during the COVID-19 crisis. But Section A of the health department order excludes patients with an emergency or whose health would be undermined by waiting.

The Center argues that delays for abortions, which have limitations based on the age of the fetus, force patients into traveling hundreds of miles to states where the legal medical procedure is more readily available or force women to give birth against their wills.

Landry issued a statement Tuesday, noting that he hasn’t been served with the lawsuit yet. He added the abortion clinics are asserting that “the rules that apply to other facilities do not apply to them.

“While the rest of Louisiana has come together to fight COVID-19, it is disappointing that (Hope Medical) is once again claiming that they are exceptional and entitled to a blanket exemption.”

Landry last week launched an investigation into whether the state’s three abortion clinics were abiding by the health department directive.

Two assistant attorney generals burst in on the Hope Clinic – they visited clinics in Baton Rouge and New Orleans as well – demanding a review of the protocols put in place and equipment being used to check compliance with the directive limiting medical procedures during crisis, said Kathleen Pittman, Hope’s administrator. They also demanded to review the personal records of individuals who have received abortions since the beginning of the pandemic.

The visits came as something of shock, Pittman said. Usually, it’s health department personnel who perform inspections, not the state’s chief law enforcement agency.

Pittman said she needed to involve lawyers to keep the Attorney General’s Office from taking the charts of patients back to Baton Rouge. The clinic is practicing social distancing by allowing only the patient into the facility as well as doing all counseling on one day and all the procedures on the next. Twenty-four hours must pass between counseling and the actual abortion under state law. She also said that the clinic doesn't use the medicines and equipment most needed by hospitals battling COVID-19.

At least seven states have issued medical procedures orders that have been interpreted as including abortion clinics. Legal challenges to similar closure orders are pending the states that include Arkansas, Alabama, Oklahoma and Ohio. So far, enforcement of the restrictions have been temporarily blocked. Iowa settled its case.

Louisiana Department of Health notice on medical surgical procedures

Republican state attorneys general, whose association Landry leads, have appealed those decisions. So far, the U.S. 5th Circuit Court of Appeals is the only appellate court to consider a trial court’s restraining order barring use of emergency COVID-19 orders as a pretext for closing the abortion clinics.

The 5th Circuit on April 7 upheld Texas Gov. Greg Abbott’s March 22 directive, thereby allowing state officials to shutter the clinics. That order has since been modified to allow abortions for women whose pregnancies have gone long enough that the procedure would no longer be allowed under existing state laws and, on Monday, to allow women to end pregnancies using medication in some cases.

Louisiana used similar language as Abbott in its order.

Landry’s teams started visiting Louisiana’s abortion clinics the day after the 5th Circuit’s decision.

On March 30, U.S. District Judge Lee Yeakel, of Austin, temporarily restrained Texas officials from enforcing Abbott’s order as it applied to abortion clinics. The state went to the 5th Circuit, which lifted the temporary restraining order, thereby closing abortion clinics while the courts figured what to do next.

In a 2-1 decision written by 5th Circuit Judge Kyle Duncan, of Baton Rouge, the majority used unusually sharp language in criticizing Yeakel for ignoring federal caselaw that oversees public health emergencies. The majority contended that the COVID-19 pandemic has created such “mounting strains on health-care systems,” that Texas is within its rights to ban non-emergency medical procedures, including abortions.

Fifth Circuit Judge Jennifer Walker Elrod, of Houston, joined in Duncan’s decision.

Judge James L. Dennis, of New Orleans, disagreed, pointing out that abortions are legal medical procedures that are time sensitive. He noted that the federal caselaw on which the majority relied comes from a 1905 decision that gave the state authority to force vaccinations on Massachusetts residents during a smallpox epidemic and therefore was not really on point.


Email Mark Ballard at mballard@theadvocate.com.