In emails, the heads of Louisiana’s biggest hospital systems reminded their staff of an existing state law: people who get illegal abortions and seek medical care for abortion complications in Louisiana are required to be reported to the state.
The law requires hospitals to report all abortion complications, even if the procedure was done legally for medical reasons, to the Louisiana Department of Health. This kind of reporting has been required since at least 2011, under statutes clearly written to collect data on a legal health care procedure, and health law experts say it could leave patients vulnerable to investigations for suspected abortions now that Louisiana’s near-total abortion ban is in effect as of Friday.
Dr. Robert Hart, the chief medical officer, and Dr. Joseph Biggio, the system chair for maternal fetal medicine at Ochsner Health, outlined in an email sent to physicians this week hospital guidance anticipating Louisiana’s trigger ban to soon take effect.
"If a patient has aborted a pregnancy, and seeks care at Ochsner with a complication, reporting will be required under existing Louisiana and Mississippi law," the email read.
In a statement, LCMC Health said the requirement to report abortion complication “has not changed and is still required. Our doctors have historically completed and submitted these forms where necessary, and we will continue doing so.”
The Franciscan Missionaries of Our Lady Health System, the other major medical provider in Louisiana, did not respond by press time.
But these reports could be a particular risk to patients who might seek illegal abortions and underline one crucial twist in the legal landscape for reproductive health care in the wake of the overturning of Roe v. Wade: laws intended to surveille abortion could be used to investigate the crime of abortion in states that have banned the procedure.
Louisiana’s current abortion ban includes criminal penalties for abortion providers, though their patients are explicitly exempt from those charges.
“Just on the face of the law, if someone just literally shows up bleeding and says ‘I had an abortion,’ under the law, there's no cause for them to face any sort of charges,” said state Rep. Mandie Landry (D-New Orleans), one of the legislature’s most vocal opponents of anti-abortion laws.
Louisiana is one of 28 states that require the reporting of abortion complications — many of them states like Louisiana seeking to ban abortions, according to the Guttmacher Institute.
“Women in Louisiana are not alone,” said Carmel Shachar, the executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics at Harvard Law School.
“This is going to happen across the country in a variety of states.”
The law has taken on new urgency in the weeks after the U.S. Supreme Court’s decision to overturn the constitutional right to abortion, triggering a chaotic legal landscape for abortion access that is still in flux. The state’s trigger bans, designed to take effect if and when Roe v. Wade was overturned, had immediately closed abortion clinics the day the decision came down.
A lawsuit from a Louisiana abortion clinic was filed just days after, and a state judge blocked the trigger bans. But on Friday, another judge allowed the temporary restraining order against the law to expire, and Louisiana’s abortion trigger law took effect. The case will now transfer to the 19th Judicial District Court in East Baton Rouge Parish.
What the law requires, and what it does not
Under the Louisiana law, medical providers must include in the report to the state a series of specific details including the date of the abortion, the medical details of the complication and the name and address of the facility where the patient was treated.
And because the information is required by state law, the disclosures don’t violate HIPAA, the federal health privacy law intended to protect patients.
“If a provider was to not share the information that's required by the law, they put themselves at risk,” said Dianne Bourque, a lawyer who represents health care providers with the law firm Mintz.
Under the law, the health department is required to create an annual report summarizing the data it has collected; it did not respond to a request for that data by press time.
The law does not require the patient’s name, but experts said the information collected could still be used to identify women who’ve had abortion complications — beginning with the health department forms created to record those complications.
Instead of a space for the patient’s name, the forms ask for a “Patient Identification Number” if known, even though that number is also not required by law.
But a patient identification number is “equivalent to a name,” Bourque said, and she advised physicians to leave it blank to protect their patients. The health department said a patient identification number is a unique code created by the healthcare facility.
It’s a “breadcrumb” back to a person's identity, Shachar said. “The whole point of a patient identification number is that it can be traceable.”
Louisiana’s major hospital systems were asked by New Orleans Public Radio in emails about how patients are given an identification number and how those IDs are used, but officials did not respond.
Even if a doctor or hospital doesn’t provide that number, other details collected could lead back to a particular patient, Bourque said. Under HIPAA, the date of care is considered an identifier, she said.
How will data be used once abortions are illegal?
Currently, the Louisiana legislature shows little appetite for charging patients for having abortions. Led by the state’s most prominent anti-abortion group, Louisiana Right to Life, lawmakers shot down a law this year that could have left women open to murder charges.
But the same legislature rejected a bill that would have explicitly protected women from going to jail for pregnancy-related crimes. Landry proposed a bill in the last legislative session that would have protected women from any kind of prosecution for a pregnancy result. In broad language, it prevented criminal and civil liability, discrimination or any punishment for “stillbirth, miscarriage, intentional termination of a pregnancy, or any other pregnancy outcome that does not result in a live birth.” But the bill was killed in committee.
LCMC Health said HIPAA prohibits doctors and hospitals from reporting attempted abortions directly to law enforcement agencies. And no Louisiana law requires health providers to report attempted abortions to police or prosecutors.
Shachar said the only time doctors would be required to share that kind of patient information is under a warrant.
But law enforcement could use health department data to investigate suspected illegal abortions, Shachar said. And that means investigating patients in order to charge those who might have provided the abortion.
“I don't think it's inconceivable that it would be shared with investigators who are looking to enforce abortion bans,” she said.
LDH officials stressed the health department doesn't share data with agencies who simply ask, but does share data required by a warrant or court order.
The abortion complication reporting law is one of over 90 anti-abortion laws Louisiana has passed since Roe v. Wade was decided in 1973 — laws Shachar warns could shift dramatically over the next few years now that abortions can be banned by individual states.
“Right now, virtually everything on the books is designed for a Roe v. Wade world,” Shachar said. “It's very possible, and it's very likely, that these kinds of laws will get updated to reflect a post-Roe world where there's no protected right to abortion, and the states are going to move to criminalize providing it and to criminalize getting an abortion.”
There is also the worry that patients who need to seek care won’t, if the state is using the information to criminalize abortion patients. It’s a consequence of the law Bourque said states like Louisiana should be prepared for.
“If there are complications, and there's this understanding that if you go to get help afterwards, you're opening yourself up to government scrutiny, your information is going to be collected, reported and passed around, how could that not have a chilling effect on someone's willingness to seek care?” she said.
Editor's Note: This story has been updated to include information from officials sent after the publication of the article.
