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The U.S. Supreme Court agreed on Friday, Oct. 4, 2019 to hear a case surrounding a 2014 Louisiana abortion law.

After months of talks behind closed doors trying to come to settlement with the state Attorney General, physicians who successfully challenged a Louisiana anti-abortion law have asked a federal judge to order Louisiana taxpayers to pay the winning attorneys almost $9 million.

That’s on top of another $2.5 million or so Louisiana taxpayers are already on hook for when Attorney General Jeff Landry, who represented the state, contracted two private firms from Washington, D.C. to handle the case that was described as the biggest abortion case in a decade.

The physicians are asking U.S. District Judge John deGravelles, of Baton Rouge, to award their attorneys $8.4 million in fees and $246,929 in expenses. deGravelles, according to the court record, told the state to answer the winning side’s claims and then he will decide how much is owed in June Medical Services, a case in which the U.S. Supreme Court twice killed the law that required physicians performing the legal pregnancy-ending procedure have admitting privileges at nearby hospitals.

“Louisiana has spent immense resources and taxpayer money on this six-year Court battle. Despite losing this case at the Supreme Court last summer, the State has continued to litigate it and waste even more taxpayer funds. The State is also still fighting tooth and nail to defend other unconstitutional abortion restrictions in court. This time and money should be spent on real issues in Louisiana, like addressing the state’s maternal mortality crisis or the impacts of the COVID pandemic,” said Julie Rikelman, senior litigation director at the Center for Reproductive Rights, based in New York City.

Rikelman argued the case before the U.S. Supreme Court.

“It’s important to realize that the majority of abortion patients in Louisiana are low-income people of color,” she added. “The restrictions the state is defending will harm those communities more than anyone else. People living on a low-income and people of color already face the greatest barriers to accessing health care in general, and even more so during the pandemic. But instead of removing barriers to health care, the state is intentionally making it harder for these communities to access abortion.”

Louisiana Solicitor General Elizabeth Murrill, who argued the case for the state before the U.S. Supreme Court, said: “The negotiations were terminated due to pending motions that needed to be resolved. At this point they’ve filed their fee claim, which we believe is excessive, and it will go to trial.”

The federal court file indicates that in addition to lawyer fees, the judge has been asked to effectively identify the physicians who are listed on court filings as John Doe 1, John Doe 2.

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Murrill added that the Louisiana Department of Justice is obligated to defend the state’s laws. “One such law being the women-led, bipartisan, Louisiana Act 620, a law that even the Governor’s Office said was worth fighting for,” Murrill said.

Act 620, which was sponsored by Katrina Jackson, who now is a Democratic senator from Monroe, received a total of 14 “no’s” in six different votes before legislators in 2014. The Louisiana law was nearly identical to a Texas law that was overturned by the U.S. Supreme Court in June 2016. The high court ruled that the Texas law created restrictions on the delivery of abortion services that were “an undue burden” for women seeking an abortion. The number of abortion clinics in Texas had declined from 42 to 19.

When the Louisiana law went into effect on Feb. 15, 2016, two of the state’s six clinics closed.

While other states, such as Alabama and Tennessee, conceded that their identical admitting privileges laws were unconstitutional after the high court ruling, Attorney General Landry, then newly elected, said Louisiana’s law had enough differences to continue the fight. “This appeal marked the beginning of more than three years of additional appellate litigation,” the physicians argued.

The issue went to trial before deGravelles “with twenty-four depositions, extensive written discovery, and briefing on several motions in limine (deciding what can be presented as evidence); briefing on a motion for partial summary judgment; and, a six-day preliminary injunction hearing where the Court heard live testimony from 12 witnesses and received into evidence testimony from eight witnesses via deposition designation and 245 exhibits,” the physicians argued.

After the trial, Judge deGravelles in April 2017 found in favor of the abortion clinics and their physicians – citing the Supreme Court decision – and stopped the state from enforcing the law.

Landry appealed to the 5th U.S. Circuit Court of Appeals, which on a 2-1 vote in September 2018 overturned deGravelles. The majority found that Louisiana differed, essentially, because the state was smaller and women seeking abortions didn’t need to drive as far as in Texas. The case made its way to the U.S. Supreme Court.

A split 5-4 U.S. Supreme Court on June 29, 2020 found that, like it did in 2016 when reviewing the nearly identical Texas law: the Louisiana requirement that physicians associate with a nearby hospital threatened the ability of the clinics to operate and amounted to an unnecessary hurdle for women seeking the legal procedure. Chief Justice John Roberts, who was among the dissenters in the Texas case, joined the majority in the Louisiana challenge basically saying the high court had already ruled on the issue. “The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law,” Roberts wrote.

On August 6, 2020, the 5th Circuit administratively closed the case. Federal law requires the loser to pay the winner's attorney fees.

Email Mark Ballard at mballard@theadvocate.com.