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Louisiana proposes expanding list of exceptions to abortion ban

The Louisiana Department of Health has quietly proposed adding one more condition to a list of pregnancies problems that could justify an abortion under the state’s abortion ban. (Photo by Astrid Riecken/Getty Images)
The Louisiana Illuminator
The Louisiana Department of Health has quietly proposed adding one more condition to a list of pregnancies problems that could justify an abortion under the state’s abortion ban. (Photo by Astrid Riecken/Getty Images)

Louisiana has proposed adding one new condition to the list of medical diagnoses that permit a person to have an abortion under the state’s strict abortion ban. It comes after a woman complained publicly that she couldn’t terminate her compromised pregnancy.

The state Department of Health quietly suggested an update to state abortion regulations in September that would put acrania – a disorder where a fetus develops without a complete skull – in the group of “medically futile” pregnancy conditions that can justify an abortion under state law.

The change was proposed about a month after Nancy Davis told reporters she had been denied an abortion at Woman’s Hospital in Baton Rouge for a fetus diagnosed with acrania. The condition results in miscarriage, stillbirth or a very short lifespan for an infant born after the prognosis.

Davis said Woman’s Hospital in Baton Rouge told her it could not end her pregnancy because of Louisiana’s abortion ban that went into effect last summer. She ended up traveling to New York in early September to undergo the procedure. Woman’s Hospital has not responded to a request for comment for this story.

Slow process to add exceptions

Adding acrania to the state’s medically futile pregnancy conditions list would change that dynamic moving forward. Once it is on the list, a person with a pregnancy affected by acrania should be able to get to an abortion, and a hospital could provide one without question.

Still, the process for putting acrania on that list is slow-going. The health department has opted to update the state’s abortion regulations through a process that takes at least four months – and often as long as six or seven months.

Officials decided not to use an emergency process that would add acrania to the list immediately.

“I am very pleased they are adding acrania [to the medically futile conditions list], but it should be added as an emergency item immediately,” Davis said in an interview. “There are women who are in underserved communities who need access to medical care – and they need access now.”

The health department, which is in charge of drafting and amending abortion regulations, has not answered questions about why it wants to add acrania to the pregnancy conditions list.

Health Secretary Courtney Phillips declined in person last month to respond to a reporter’s question about whether state abortion regulations would be updated. Instead, she referred the reporter to her agency’s communications department.

Confusion in state law

There is confusion about whether acrania diagnoses could currently justify an abortion under a catch-all exception included in Louisiana’s abortion regulations.

After Davis’ case garnered media attention, state Sen. Katrina Jackson, D-Monroe, and several other anti-abortion legislators released a written statement saying Woman’s Hospital “grossly misinterpreted” Louisiana’s abortion policies. Jackson helped write the state’s strict abortion ban, including the statute that provides for exceptions for medically futile pregnancies.

Abortions are allowed if a fetus has a “profound and irremediable congenital or chromosomal anomaly … that is inconsistent with sustaining life after birth,” according to a state regulation. The lawmakers said this provision should have applied to Davis’ case.

“The law in conjunction with the emergency rule is very clear that this young lady is within the exception,” lawmakers said in their statement.

Jackson said health officials told her in August that an acrania diagnosis would justify an abortion. Health department spokeswoman Aly Neel sent a general statement Monday that suggested that might be the case, but stopped short of confirming what Jackson said.

“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,’” Neel wrote. “That is why the [current regulation] does – and the [final regulation] will – provide for physician certification of other conditions that would allow for termination. LDH’s final rule will include acrania.”

Emergency option

The confusion over acrania’s status may be cleared up if health officials added it to the medically futile condition list immediately. Regulations can be adopted or amended on an emergency basis under state law if they “prevent an imminent peril to the public health, safety or welfare.”

The current list – that doesn’t include acrania – was established under an emergency rule in August. The health department hasn’t answered questions about why it isn’t using that process to update the list.

State officials routinely approve or amend emergency regulations. Recent emergency rules include those that closed the red snapper fishing and oyster harvesting seasons as well as adjustments to the minimum qualifications for a licensed teacher.

In August and September alone, there were 10 new state emergency rules adopted, including one to establish weight classes for London Ring Fighting, described as “the sport of boxing conducted without the use of boxing gloves or other padding on the participants hands.”

In recent years, legislators have complained that state officials, particularly those in the health department, use the emergency regulation process too often. It allows state agencies to initially bypass the public hearing and comment period required before a regulation can be permanently adopted, which makes some lawmakers uneasy.

Arcania is unlikely to be the only new condition proposed for the medically futile list. Doctors have already said other illnesses will come up regularly that might justify the termination of a pregnancy.

“[The health department] will never be able to think of everything because medicine doesn’t work like that,” said Dr. Rebekah Gee, an obstetrician/gynecologist based in New Orleans and the former head of the Louisiana Department of Health. “You will never be able to come up with a complete list.”

Anti-abortion advocates could also push back on adding more conditions. The state’s leading anti-abortion organizations didn’t want the state to allow as many exceptions to the abortion ban in the first place. They unsuccessfully fought to take the language that created the medically futile pregnancy conditions list out of the law before it was approved last spring.

“We were not excited about this list,” said Gene Mills, head of Louisiana Family Forum, a conservative Christian organization. “I think it creates – as an illustrative list does – winners and losers, and there are always unintended consequences in doing that.”

Some anti-abortion advocates said conditions expected to be fatal to an infant, including acrania, do not justify abortion because they believe it amounts to ending a life prematurely.

“We know that it is a heartbreaking situation, and we know people who have been through similar circumstances who have chosen to carry the baby to term. Sometimes the child can live much longer than the medical diagnosis predicts,” said Benjamin Clapper, executive director of Louisiana Right to Life, the state’s leading antiabortion organization.

“We are certainly not making light of this in any way,” Clapper said. “It’s a heroic thing to love that child until the end.”

Louisiana Illuminator is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity.

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