It’s that time of year again — when Louisiana state legislators nearly have completed their annual practice of rushing additional abortion restrictions through the legislature. Some restrictions have significantly decreased access to legal abortion over the last decade, while others have been put on hold amid taxpayer-funded legal battles.
The process typically begins with an anti-abortion state legislator — many of whom are Democrats as well as Republicans — proposing legislation further regulating abortion.
It may be a small change to the law like extending the amount of time abortion providers have to keep records, or a more drastic change like requiring abortion clinics to be within 30 miles of a hospital. Those testifying in favor of the legislation usually frame it as a “common-sense measure,” while those testifying against it argue it will create an additional hurdle for abortion providers and women trying to access the procedure.
The bill then passes both chambers — with only a handful of votes from some Democrats in opposition — and is signed into law by Gov. John Bel Edwards, a Democrat whose strong anti-abortion voting record helped him win statewide election in a deeply red state.
Then legal challenges ensue.
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Sen. JP Morrell, D-New Orleans, is one of the few Louisiana legislators who often votes against proposed abortion restrictions. He says abortion, along with same-sex marriage, is one of several issues where legislation passed by the state conflicts with decisions handed down by the U.S. Supreme Court.
“It's kind of bizarre that when we have things that are found unconstitutional, there is an active effort to keep unconstitutional stuff on the books,” Morrell says. “As weird as that is, that has been the ultimate plan with Roe v. Wade since the beginning of time.”
During the current legislative session, one of the most-discussed bills was Senate Bill 184 by Sen. John Milkovich, D-Shreveport, that would ban abortions once a fetal heartbeat is detected, around the sixth week of pregnancy — before many women know they’re pregnant. The bill passed the Senate 31-5 May 6, and now heads to the House. (Other states recently have passed their own “fetal heartbeat” laws.)
Another bill, HB425 by Rep. Katrina Jackson, D-Monroe, would add language to the state constitution clearly stating that it does not protect a woman’s right to choose an abortion. The House passed the bill 80-10 in April, and a Senate committee advanced it May 7.
If two-thirds of the Senate passes the bill and Edwards signs it, Louisiana voters will decide on Nov. 16 if they want the provision added to the state constitution.
Louisiana already has a 2006 “trigger law” in place that automatically would ban nearly all abortions in the state if Roe v. Wade is repealed by the U.S. Supreme Court. A state constitutional amendment would be harder to reverse than the current trigger law.
“This is needed because the abortion industry would go into the Louisiana Supreme Court arguing that there is nothing about abortion in the state constitution,” said Dorinda Bordlee, senior counsel of Bioethics Defense Fund, in a Senate committee hearing on the bill. “This very simple amendment closes the door to judicial activism.”
But when abortion restrictions are passed, that does not mean they instantly go into effect. Several existing Louisiana abortion laws are in limbo, hinging on taxpayer-paid legal battles.
Milkovich, a staunch opponent of abortion, also authored a 2018 bill that would change the time a woman could legally obtain an abortion in the state from 20 weeks post-fertilization to 15 weeks. The 15-week ban became law, with a provision stating it would only take effect if courts uphold Mississippi’s version of the law — a move aimed at curbing the litigation costs the state would have to pay when the law inevitably was challenged in court.
Mississippi’s sole abortion clinic immediately sued the state when the ban passed, and the law was blocked by a federal judge last November. U.S. District Judge Carlton Reeves ruled that the 15th week of pregnancy was before “viability” of a fetus, or the point at which a fetus can survive outside of a mother’s womb — usually between 24 to 28 weeks.
Likewise, the Louisiana bill banning abortion once a fetal heartbeat is detected would go into effect only if courts upheld a similar law Mississippi passed in March. Proceedings are expected to begin in the federal Southern District Court in Mississippi this month, potentially costing Mississippi taxpayers more than a million dollars in legal fees.
If Gov. John Bel Edwards, as expected, signs the 'fetal heartbeat' bill that's moved through the state legislature, it would restrict abortion…
Ellie Schilling, a New Orleans attorney who has represented Louisiana reproductive health care providers, says these Louisiana laws are tied to decisions on the Mississippi laws up to the Fifth Court of Appeals, which handles cases from Louisiana, Mississippi and Texas and is traditionally more conservative than other appeals courts.
If the Fifth Court of Appeals upholds either of Mississippi’s bans, Louisiana’s ban automatically kicks in — and so does its responsibility for potential legal costs if the case goes to the U.S. Supreme Court.
“It would immediately be litigated here at that point, still before really there would be clarity on whether the Supreme Court was ultimately going to find it constitutional,” Schilling says.
In other cases, Louisiana taxpayers are footing the legal bills outright for defending abortion restrictions. Such is the case with a 2014 law requiring abortion clinics have admitting privileges to a hospital within a 30-mile radius. The U.S. Supreme Court struck down a nearly identical law in Texas in 2016.
Currently, there are only three abortion clinics in the state: one each in New Orleans, Baton Rouge and Shreveport. That’s down from five in 2014 and seven operating in 2011. If the admitting privilege law goes into effect, Louisiana would be left with just one abortion clinic.
Schilling says the state currently is facing numerous additional legal challenges to its existing abortion restrictions. One lawsuit involves seven laws that were passed in 2016. Another surrounds licensing requirements for abortion clinics.
According to Schilling, a year ago the state had spent around $1.5 million on outside counsel for these ongoing lawsuits. That amount does not include the costs of in-house legal counsel or the plaintiffs’ legal costs the state would have to pay if it ultimately lost the lawsuit.
"Ladies and gentlemen, that is a hop and a skip from the Handmaid’s Tale,” State Sen. JP Morrell, D-New Orleans, said.
Proponents of laws restricting abortion — who believe life begins at conception — say the restrictions are worth defending. Some, like Milkovich, oppose tying them to other states’ laws because it inherently delays their effectiveness.
“I cannot think of a better expenditure of money that Louisiana could make than to protect the life of the unborn,” Milkovich said during a House committee meeting last year, when lawmakers spent three taxpayer-funded special sessions scrambling to agree on a solution to replace hundreds of thousands of dollars of expiring state revenue.
But other abortion-law proponents, like Louisiana Right to Life (LARTL), support these types of legal provisions.
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In a statement in support of the trigger on Milkovich’s so-called “fetal heartbeat” bill, Benjamin Clapper, executive director of LARTL, said, ”This provision allows our attorney general’s office to focus on its current defense of already existing pro-life laws in federal court, including the likely defense before the Supreme Court of our 2014 law requiring abortionists to have admitting privileges at a local hospital.”
Katie Caldwell, clinic director at Women’s Health Care Center in New Orleans — one of the state’s three remaining abortion clinics — attributes part of the major decline in abortion clinics in the state over the last decade to the litigation costs these restrictions place on the clinics.
“It becomes really difficult and really expensive to provide care when you're constantly in court fighting all these things,” she says.
The U.S. Supreme Court so far has upheld its 1973 decision affirming a women’s right to abortion prior to viability of the fetus. But President Donald Trump’s appointment of conservative Judge Brett Kavanaugh to the court to replace former Justice Anthony Kennedy has fueled anti-abortion activists’ hopes that overturning Roe v. Wade entirely could be a possibility.
Other abortion-related bills working their way through the state legislature would place additional regulations on abortion providers — regulations that other health care providers in the state are not subject to and some that potentially could open up the state to more lawsuits.
State Sen. Beth Mizell, R-Franklinton, filed two bills this session pertaining to abortion: one regarding information physicians must give women seeking an abortion and another dealing with mandatory reporting of sex trafficking.
Currently, abortion providers are required to tell patients the name of the physician who will provide the abortion. SB 221 would require abortion providers to put that information in writing as well — along with additional information including where the physician completed his or her residency, whether he or she has malpractice insurance and whether the doctor has been placed on probation in the last 10 years. The bill passed the Senate unanimously in April.
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Mizell says the bill will give women seeking abortions additional information about the procedure and that requiring providers to give patients the physician’s name in writing allows the patient to search that physician’s disciplinary history online.
“The purpose of the bill was just to make sure the woman had in hand what most of us as patients want in hand, and that's the information on the person that will be performing the medical procedure,” Mizell says. “In this case, it just would happen to be an abortion.”
Opponents argue that these regulations contribute to existing stigmas surrounding abortion clinics.
“It's meant to be burdensome, and it's meant to be stigmatizing to physicians who provide abortions by treating them as if they are, by definition, some sort of unqualified provider,” says Schilling.
“I think it's also intended to scare patients: Why are you giving me all of this information in writing about all of your qualifications? I've never had a doctor do that before,” she adds.
Mizell’s second bill, SB 238, would require anyone working at an abortion clinic who has contact with patients — including receptionists — to be a mandatory reporter of human trafficking. (Existing law already makes the clinic and health care practitioners mandatory reporters.)
“This may be the one place, especially with the trafficking victim,” Mizell says, “to have somebody that they can speak to and say, ‘Look, this is what's happening to me’.”
Schilling says she’s concerned this bill will make people who have little contact with a patient subject to major criminal penalties, which could deter people from working at clinics, whether as a physician or as a receptionist.
While abortion rights disputes cause fierce arguments around the nation, they create little obvious friction among Louisiana lawmakers, who re…
HB 133 by state Rep. Frank Hoffman, R-West Monroe, changes the legal definition of abortion to include medication abortions, and would require both medication and surgical abortions to be performed at a licensed abortion clinic.
Medication abortions involve taking a pill to terminate a pregnancy and can be done during the first 10 weeks of pregnancy. Currently, licensed physicians in the state who have completed their OB-GYN residency can provide medication abortions. If the bill becomes law, only physicians at the state’s remaining clinics could administer the medication.
House Bill 484 by Rep. Raymond Crews, R-Bossier City, would extend to seven years the amount of time abortion facilities are required to keep medical records of women who have abortions. For minors, the records would have to be retained for at least 10 years, beginning when the patient turns 18. Penalties would include up to $1,000 per document that was not retained “and/or imprisonment of up to two years with or without hard labor.”
These bills in Louisiana mirror a nationwide trend of piecemeal abortion restrictions passed in conservative states to chip away at — and potentially overturn — the Roe v. Wade decision.
Ohio, Kentucky, Iowa, North Dakota and Georgia all have passed bills that, like Milkovich’s, would ban abortions once a fetal heartbeat is detected.
Georgia Gov. Brian Kemp signed into law May 9 a particularly stringent provision that also would change the state’s definition of “natural persons” to include “an unborn child” — potentially making getting or providing an abortion punishable by life imprisonment. The law is set to go into effect in 2020, and the American Civil Liberties Union (ACLU) and the Center for Reproductive Rights already have said they’ll challenge it in court.
In Alabama, the House and Senate passed a bill earlier this month that would make almost all abortion illegal — with exceptions only when the mother's life is at risk. The bill heads to the desk of Republican Gov. Kay Ivey, who is expected to sign it.
But the national political climate surrounding abortion differs from that in Louisiana and the Deep South in general. According to the 2016 Louisiana Survey by the LSU Public Policy Research Lab, 55 percent of Louisiana residents think abortion should be illegal in all or most cases. Forty percent of residents think abortion should be legal in all or most cases — compared to 55 percent nationally.
Slightly more than half of Democrats in the state think abortion should be legal in all or more cases, while only a little more than a quarter of Republicans share that position. This is why, in Louisiana, the abortion debate is not as cleanly split among party lines as it is elsewhere.
“There's an assumption because people are from New York or California or wherever that Democrats are all pro-choice, pro-reproductive rights,” Morrell says. “There are social, societal, religious influences in the state of Louisiana that all come into play when you're having these debates and these discussions.
“It's interesting when you talk to people personally,” he adds. “Their personal positions don't often reflect their votes.”
Political pressures created by term limits are compounded by pressures from powerful anti-abortion groups, like LARTL and the Louisiana Family Forum (LFF). Both groups give out legislative scorecards ranking legislators from 0 to 100 percent based on their votes on bills related to abortion and other social issues.
Clapper says while LARTL publishes these scorecards on their website and in their electronic newsletters, it usually does not send out its own mailers publishing the results — though, he says, outside groups often publish the results in their own mailers and advertisements.
Clapper adds that while the scorecards are not a perfect way to measure a legislator’s record on abortion, the group wants to make sure the information it presents is easy to understand and distribute. “When you're trying to provide something that a lot of people can digest simply, the more details you provide, your retention rate goes down among the citizens,” he says. “So you have to strike a balance between those two things.”
Anti-abortion groups also have a strong influence on abortion-related bills throughout the legislative process.
In a Senate committee debate over Milkovich’s bill that would ban abortions once a fetal heartbeat is detected, the committee originally passed an amendment that would make exceptions for cases of rape and incest.
However, when Clapper said he was against the amendment, state Sen. Bodi White, R-Baton Rouge, called a second vote. Ultimately, the committee stripped the amendment from the bill.
Clapper attributes the decision to strip the amendment to him being able to clarify confusion about multiple amendments moving through the committee at once. “We felt that for the sake of these legislators who may have been confused in the situation, we needed to make that clear,” he says.
Morrell says that because many legislators plan to run for higher office after they are term-limited in the state legislature, they consider how their voting record on abortion will impact their ability to run for state or federal office. That often means voting to avoid attack ads from large anti-abortion groups, he says.
“The thing is ... that many politicians try to find the path of least resistance to re-election at a higher office,” he says. “It's one of those issues where I think a lot of people know the safer vote is to always vote against reproductive rights and for the pro-life stance.
“Every year, you have to tour your district trying to explain away votes that people attack you for with no context,” Morrell adds. “Many people discover — especially newer legislators — it’s easier to give them a vote than to try to explain the vote.”
Jennifer McCoy returned to the State Capitol to testify again for Milkovich’s bill. Last month, her appearance attracted attention when it was discovered she served 30 months in prison for conspiracy to commit arson at two Virginia abortion clinics.
State Sen. Troy Carter, D-New Orleans, says that the conversation about abortion in Louisiana often is framed as only two-sided, which he says does not reflect the realities of the issue. He says that legislative scorecards only contribute to that.
“Where I think a lot of people are boxed in and they feel they can't properly answer and defend their position is because oftentimes that argument of either you are pro-life or pro-death,” he says. “...I am firmly pro-choice. I'm also firmly in favor of life. I cherish life, I support life and to somehow suggest that if you think a woman should have the right to choose that somehow you're choosing death — I think is just an unfortunate position and it's flat out wrong.
“The scorecard is going to be ‘my way or the highway,’” Carter says. “It's going to be either you see things exactly the way I see it or you get a poor score. There's no gray area. There's no room in there for explanation.
“Life doesn't work that way. Legislation doesn't work that way. And policy doesn't work that way. I think it's a one-sided way to judge and it is a way to only get your way rather than having a meaningful discussion.”
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