The major combatants in the battle over abortion in Louisiana skirmished in a new forum Wednesday, as lawyers squared off before a panel of federal appeals court judges in New Orleans over Planned Parenthood’s long-stymied effort to offer abortion services at its South Claiborne Avenue health clinic.
Planned Parenthood has sought to offer abortions since opening the New Orleans facility in 2016, but the state Department of Health, which must give the clinic a permit first, has failed to issue a ruling one way or another. In a 2017 letter, the department said it was investigating Planned Parenthood.
Accusing the agency of engaging in a “sham” licensing process by not acting, Planned Parenthood has taken the case to the federal courts. The state’s attorneys failed to win a dismissal of the case at the district court level in Baton Rouge. They then took their case to the 5th U.S. Circuit Court of Appeals in New Orleans, where Wednesday’s argument took place.
The legal maneuvering is taking place in one of the country’s strongest anti-abortion states, under a Democratic governor, John Bel Edwards, who unlike most national Democrats is unequivocally opposed to abortion rights.
Wednesday’s arguments before the three appeals court judges — Jennifer Walker Elrod, Patrick Higginbotham and James Ho — actually focused on arcane legal arguments over whether the licensing question belonged before state or federal courts. The appellate judges, who could take months to rule, will not be deciding whether the state should issue the license.
The state's attorney, Liz Murrill, the solicitor general for the state Attorney General’s Office, said Planned Parenthood’s effort to obtain the state license belongs in state court. And before even going to the courts, she said, the nonprofit group should first take other steps, such as seeking a meeting with the Department of Health secretary, applying for a provisional license and requesting a final ruling.
"They didn't do any of that," Murrill said. “Ultimately, what they are trying to do is circumvent the licensing process.”
In an interview afterward, Murrill said Planned Parenthood officials have gone to federal court because they expect more favorable treatment from federal judges. “They are forum-shopping,” she said.
Planned Parenthood officials counter that illegal delays by the Department of Health and a hostile state Legislature forced them to turn to the federal courts.
According to Planned Parenthood, the Department of Health processes a typical licensing request in six weeks. But the agency engaged in “stall, stall, stall” when it came to permitting an abortion clinic, Carrie Flaxman, an attorney for the nonprofit, said in an interview.
At one point, the department, under then-Gov. Bobby Jindal, required a so-called “Facility Need Review” approval — essentially a market study that measured the demand for abortions — and then denied Planned Parenthood’s application, the nonprofit said in a court filing.
The agency then allowed Planned Parenthood to supplement its application. After the nonprofit submitted that, the department rescinded its requirement for a Facility Need Review. Planned Parenthood said the department then launched a bogus investigation of the nonprofit and sought to prevent it from continuing to participate in the Medicaid program, which provides subsidized health care for the poor. A federal court blocked the department from cutting off the Medicaid money.
Planned Parenthood opened its health care facility on South Claiborne Avenue, near Napoleon Avenue, in June 2016, after delays caused by arson and death threats to workers on the site. And the nonprofit, which has not performed abortions previously in Louisiana, pressed on with its licensing request.
The center was built to accommodate abortions, but in the meantime it is providing screenings for cancer, sexually transmitted diseases and routine health checkups for women.
In June 2017, the Department of Health wrote Planned Parenthood that the agency was investigating the group's Gulf Coast office after the U.S. House of Representatives in December 2016 released a critical report on the group that included a referral to the Texas attorney general’s office. The department has taken no action on the license since then.
“Every time the state makes a new requirement, we meet it,” said Flaxman. “There’s nothing we can do to move the application forward.”
The state has never rejected a request to open an abortion facility, said Robert Johannessen, a Department of Health spokesman.
The Jindal administration restricted abortion services and stymied Planned Parenthood’s initial moves to win the state operating license. The latest moves, however, have taken place under Edwards.
That’s not entirely a surprise. Edwards did not follow the national Democratic Party's position on abortion during his eight years in the Legislature, scoring a 100 percent pro-life voting record, according to Louisiana Right to Life, the state’s leading anti-abortion group.
Edwards, a devout Catholic, also broadcast a television ad during the 2015 campaign in which he and his wife Donna related how they disregarded a doctor’s advice to have an abortion after prenatal tests showed that their daughter would be born with spina bifida.
His pro-life stance helped make him acceptable to conservative voters, and he was the only Democrat to win statewide office that year.
Other Louisiana Democrats — including state Rep. Katrina Jackson from Monroe and Sen. Regina Barrow from Baton Rouge — also are known for their pro-life views.
A Democrat from Shreveport, John Milkovich, sponsored a bill approved during the 2018 legislative session that would prohibit abortions after 15 weeks of gestation. A federal court in Mississippi ruled in November that a similar law there was unconstitutional, and that ruling has prevented Louisiana’s restrictive law from taking effect.
With restrictions tightening on abortion providers in Louisiana, New Orleans finds itself down to just one clinic performing the procedure.
Under current law, abortions in Louisiana cannot take place after 20 weeks.
Louisiana has the fourth strongest anti-abortion legal framework in the country, according to a state-by-state ranking by Americans United for Life, a Virginia-based group.
Abortions have been on the decline for several years in Louisiana after rising steadily in the preceding years. In 2017, 8,706 abortions were performed in Louisiana, according to the Department of Health, down from a peak of 10,322 in 2014. The agency won’t have the 2018 numbers for several months, said a department spokeswoman.
Abortion clinics operate in Shreveport, Baton Rouge and New Orleans. As recently as 2011, there were seven abortion clinics in the state. Now, just three remain. The Planned Parenthood clinic would be the fourth if it’s issued a license.