A public hearing over Louisiana’s list of 25 enumerated conditions that make a pregnancy “medically futile” and thus allow for a legal abortion under the state’s strict ban on the procedure drew condemnation from several doctors Tuesday, who warned that creating such list threatens patient health and hamstrings physicians.
The Louisiana Department of Health proposed adding acrania to the list in August, after a Baton Rouge woman named Nancy Davis was denied an abortion for a fetus with the typically fatal condition. Davis had to travel to another state for the procedure, sparking a firestorm of criticism about the state’s ban.
The hearing Tuesday, at the department’s offices in Baton Rouge, aimed to solicit public input on the list. Louisiana bans abortion at any point in a pregnancy, with no exceptions for rape and incest. The only exceptions are to save the life of the pregnant woman or to terminate a pregnancy deemed “medically futile,” which is not a medical term. The Legislature tasked the Health Department with creating the list, and the hearing was part of the rulemaking process.
Doctors and abortion-rights advocates testified that the LDH’s list of qualifying conditions is incomplete, missing by one physician’s count hundreds of conditions that should allow a pregnant woman to get an abortion. Some said it is impossible to craft a list that would include every possible scenario, and that the LDH should leave it up to patients and their doctors to determine whether a pregnancy is “medically futile.”
“I am here to beg for an expansion of this (list), as well the expansion of legal protection for physicians who are trying to stay within the bounds of this law and this new terrifying legal landscape,” said Dr. Nina Breakstone, a New Orleans-area emergency medicine doctor. “This list as it was written has created an atmosphere of terror among my colleagues.”
Louisiana’s law subjects people who perform abortions to the possibility of a decade or more in prison, unless the abortion falls under the limited exceptions. The LDH list, which is not finalized yet, includes 25 specific conditions, as well as an allowance for conditions that two doctors agree are medically futile. Some doctors have warned that making two doctors sign off will delay lifesaving health care for some patients with pregnancy complications, especially in health care deserts that exist across rural Louisiana.
Three anti-abortion activists also testified Tuesday. Richard Mahoney, who carried a rosary, invoked Hitler and Nazi death camps multiple times and said “we cannot play God.”
“We are not in the field of deciding who lives and dies,” he said.
Louisiana Right to Life, the state’s biggest anti-abortion group, which wields immense influence among the mostly Republican Legislature, didn’t attend. But the group, which opposes the exception for “medically futile” pregnancies altogether, submitted written comments asking the Health Department to remove Trisomy 13 and 18, two chromosomal conditions, from the list.
“To be clear, Louisiana Right to Life did not support the inclusion of the ‘medical futility’ provision during the legislative session,” Executive Director Benjamin Clapper wrote. “We recognize the deep suffering families experience after receiving grave diagnoses. With this being said, all persons, including those with disabilities or terminal illnesses, have the right to life.”
The state’s rules, adopted on an emergency basis following the U.S. Supreme Court decision this summer that ended a half-century of abortion rights, currently include two dozen conditions. The proposed list also adds acrania, which prevents fetuses from developing a skull, after Woman’s Hospital denied Davis an abortion for a fetus with that condition. State lawmakers and some physicians said the condition should have qualified her under the existing list.
“This is an evolving document, and LDH has always said that the list would not be able to encompass every possible diagnosis that would meet the definition of ‘medically futile,’” Health Department spokesperson Aly Neel said in a statement. “That is why the emergency rule does -- and the final rule will -- provide for physician certification of other conditions that would allow for termination.”
A host of doctors have spoken out against Louisiana’s trigger ban since Roe v. Wade was overturned, saying it jeopardizes health care in a state where the landscape for pregnant women and children is already grim.
Several dozen people, including doctors, also wrote comments on the proposed rule, with physicians saying pregnant women have had access delayed because of the list currently in use. One Baton Rouge doctor wrote some of her patients had to "come up with large sums of money and travel out of state for abortion procedures, as they felt they were not able to receive standard of care in their home state."
A handful of those who wrote told personal stories, including one woman who said she had to terminate her pregnancy in 2011 after a 20-week ultrasound revealed two rare fetal brain abnormalities. She said neither are on the proposed list.
Other people wrote in to say they opposed abortion generally or opposed any exceptions for fetuses with health conditions.
After Roe fell, abortion-rights groups challenged Louisiana's trigger law in court, and they won several temporary stays of the law. But abortion has been banned since late summer, when a court ruled against them.
Advocates are hoping the Legislature will take a fresh look at the law in next spring’s legislative session. Gov. John Bel Edwards, an anti-abortion Democrat who has signed several strict abortion laws, including the latest trigger ban, has said he supports adding exceptions for rape and incest, though the laws he’s signed haven’t included them.
“The radical actions of the Louisiana Legislature have jeopardized the health care of Louisiana women and endangered their lives,” said Melissa Flournoy, a former Democratic lawmaker who testified Tuesday.
The Health Department is expected to issue an oversight report following the hearing, and legislative committees will have the chance to hold their own hearings on the proposed rule. It was not clear Tuesday when the agency would issue that report, or whether it would make changes to the rules.
