The new front in the fight over abortion rights reached Louisiana this week, after a Shreveport clinic sued state officials to try and stay open amid mounting political pressure to shut down abortion clinics during the coronavirus outbreak.
The lawsuit is just the latest in a long saga of legal battles pitting abortion clinics against avowedly anti-abortion political leaders over regulations and laws that are either, the two sides argue, ideologically tailor-made to shut down clinics or simply measures intended to protect public health.
“Louisiana has been trying for decades to end abortion by using underhanded attempts and justifications,” said Nancy Northup, the president of the Center for Reproductive Rights. The legal group is representing The Hope Medical Group for Women abortion clinic, the plaintiff in the case. “Some officials in the state are now exploiting the coronavirus pandemic to achieve their ideological goal of ending abortion.”
Hope sued top officials at the Louisiana Department of Health and Attorney General Jeff Landry on Tuesday, one week after two officials from Landry’s office arrived at the clinic’s doors for an unannounced and unprecedented inspection, said Hope’s administrator Kathaleen Pittman.
“We're accustomed to unannounced visits from LDH, but never the attorney general's office,” said Pittman, who’s worked at the clinic since 1992.
The inspection stemmed from a health department notice issued in late March. It suspended all medical and surgical procedures except in emergencies or to avoid harms from underlying health conditions or diseases —a directive issued in many other states during the pandemic. What exactly constitutes an exception was left up to physicians, and the notice said nothing specifically about abortions.
Soon after, Landry in a statement condemned the Shreveport clinic for operating and explicitly stated that “elective abortions are not essential procedures.” He accused Hope of putting profits “over the health and safety of the public.”
Landry’s office sent officials from its medical fraud staff, according to the lawsuit, who spent two hours at the clinic.
“They were asking about our protocols,” Pittman said. The clinic has implemented a number of procedures since the outbreak to ensure social distancing, enhance cleaning and preserve protective equipment. “They observed the cleaning process of, the breakdown of one of our ORs, observed the way we have chairs and recovery beds positioned to ensure social distancing.”
The officials also reviewed patient charts and requested hard copies, according to the lawsuit.
All three Louisiana abortion clinics in New Orleans, Baton Rouge and Shreveport have been open during the pandemic, but the number of patients they can see has been reduced.
Steffani Bangel, the executive director of the New Orleans Abortion Fund, said they’re seeing “increased fear and urgency” among those calling the fund to help pay for abortions.
Calls to ban abortions during the pandemic have been growing among anti-abortion politicians and pro-life groups over the past few weeks. Ben Clapper, the head of Louisiana Right to Life, the state’s most prominent anti-abortion group, said he heard of the inspections from anti-abortion activists who regularly stand outside abortion clinics. They sent photos, and “then we contacted the State Attorney General's office to inquire what the nature of what was happening,” Clapper said. “And that's when they confirmed that it was this task force.”
That day, Landry’s office released a statement outlining the creation of the new task force, in conjunction with the Louisiana Department of Health, to investigate possible violations of the health notice. The task force has visited all three abortion clinics in the state last week and one endoscopy center, but the attorney general has not released a complete list of which facilities have been visited, or even how many.
Gov. John Bel Edwards confirmed he’d seen the inspection report during a press conference on Tuesday. He said it presented findings and no conclusions on whether abortion clinics were violating the health notice, and didn’t share further details. He said the health department and attorney general’s office were talking about “next steps.”
Edwards has not stated clearly whether he thinks abortions should be considered essential, though he said last week that abortions could be elective but it would “depend on the conditions.”
But both Edwards, a Democrat, and Landry, a Republican, are staunch opponents of abortion with long records of supporting anti-abortion legislation — including last year’s six-week abortion ban and an anti-abortion Louisiana law before the Supreme Court this spring. A ruling in that case, expected in June, could close two or all three remaining abortion clinics in the state.
But the pandemic could shutter them much sooner.
Pittman said the clinic has been abiding by the health notice. Meanwhile, they’ve seen an uptick in anti-abortion phone calls.
“One minute we're trying to console a woman over the delay in her care. The next minute we're answering a call from somebody that is demanding that we be shut down or else,” Pittman said.
The Louisiana lawsuit mirrors the same arguments seen across a slew of litigation filed during the pandemic in Texas, Alabama, Arkansas, Iowa, Ohio, Oklahoma and Tennessee — that abortion is a time-sensitive and essential procedure; that banning abortion would only increase the use of personal protective equipment during a resulting pregnancy; and that abortion clinics don’t impact other hospital resources.
The American College of Gynecologists and Obstetricians and the American Medical Association have criticized abortion bans during the pandemic. The AMA’s president, Dr. Patrice Harris, accused state officials of “exploiting this moment to ban or dramatically limit women’s reproductive health care.” She added that “physicians, not politicians” should be the ones deciding which procedures are urgent.
The suit also argues that abortions cannot be delayed without infringing on a 47-year-old constitutional right, and that abortion providers are being unfairly singled out by anti-abortion politicians.
“So this is of the same playbook as the trap laws that we've been fighting for years,” Northup said, “which is to use a false justification of medical necessity, when in fact, they're not medically necessary regulations and their impact is to close the clinics.”
The health department notice has no expiration date, but abortion access in the state does. Louisiana law bans most abortions after 22 weeks of pregnancy, and Hope only performs them up to 17 weeks. State abortion laws and regulations also bar abortion clinics from shifting to telemedicine — now the norm during the pandemic.
District courts have ruled in favor of abortion clinics in every other state, as have two appeals courts—the 6th Circuit Court of Appeals and 10th Circuit Court of Appeals. Then this week, the conservative 5th Circuit Court of Appeals ruled to allow medication abortion in Texas. The decision came only after that bench had already upheld a near-total ban in Texas, and surgical abortions there remain banned.
Pittman said that ban has lit up the clinic’s phone lines, and they’re now booking patients three weeks in advance.
“We've seen a huge influx of calls from patients from Texas and even other states where they've tried to cut off at abortion access. Women have driven hundreds of miles, which is a frightening undertaking in the middle of the crisis,” she said.
In response to the lawsuit, Landry said that Hope is “claiming they are exceptional and entitled to a blanket exemption” from rules that apply to other health facilities, and promised to fight the lawsuit.
A hearing date in the case has not yet been set.
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