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Reproductive rights groups sue Louisiana over controlled substances law

This file photo shows bottles of abortion pills mifepristone, left, and misoprostol, right, displayed at a clinic on Sept. 22, 2010.
Charlie Neibergall
/
AP
This file photo shows bottles of abortion pills mifepristone, left, and misoprostol, right, displayed at a clinic on Sept. 22, 2010.

A group of health care providers and two Louisiana women who were denied abortion care are suing state officials to block a new law that makes common pregnancy medications controlled dangerous substances, arguing the law is discriminatory and unconstitutional.

The plaintiffs include Birthmark Doula Collective in New Orleans, Dr. Emily Holt, a New Orleans family medicine physician, Shreveport pharmacist Kaylee Self, who is pregnant, and Nancy Davis and Kaitlyn Joshua, two Baton Rouge women who were denied abortion care in 2022 after Louisiana’s near-total ban took effect.

Lift Louisiana and the Lawyering Project, which both support reproductive rights, filed the suit on Oct. 31 in the 19th Judicial District Court in East Baton Rouge. It names the state, Attorney General Elizabeth Murrill, the Louisiana Board of Pharmacy and Louisiana State Board of Medical Examiners as defendants.

Murrill said her office will "vigorously defend" the law.

“I can’t respond to a lawsuit we have not seen, but I’m confident this law is constitutional," she said.

Louisiana Right to Life, which helped draft the law, called the suit “bogus” and a “waste of taxpayer resources.”

Policy director Erica Inzina said that every health care provider in Louisiana “who truly cares about women’s safety” should support the law.

Plaintiffs argue the law is “impeding and delaying access to potentially lifesaving medications for patients experiencing critical emergent situations” by reclassifying misoprostol and mifepristone as Schedule IV dangerous controlled substances.

Mifepristone and misoprostol have myriad uses and they’re commonly prescribed in pregnancy and gynecological care, but they can also induce abortions. The law, Act 246, has added restrictions and surveillance on how doctors can prescribe the drugs. It’s forced hospitals to lock them up in cabinets, which leading maternal health experts have argued could cause dangerous delays in accessing misoprostol to treat hemorrhaging after birth. Postpartum hemorrhage is a leading cause of maternal mortality.

“Even relatively short delays of mere minutes can be catastrophic for patients who are bleeding out at an alarmingly fast rate” and potentially lead to death, the suit alleges.

The doctor, pharmacist and doula collective are suing on behalf of themselves and their patients, arguing that new systems hospitals have developed to store and retrieve misoprostol quickly “necessarily introduces confusion and the potential for error.”

“We're asking that the law be declared unconstitutional, invalid and unenforceable,” Schilling said.


Suit claims law is discriminatory and unconstitutional 

Together, the plaintiffs are asking a state court judge to permanently block the law for two reasons.

First, they claim the law violates the right to equal protection by discriminating against patients and providers based on physical condition, under Article 1, Section 3 of the Louisiana Constitution. They argue the law singles out pregnancy (and other conditions treated by misoprostol and mifepristone) and creates barriers and risks for those who use and prescribe mifepristone and misoprostol, compared to other physical conditions that can be treated with drugs that have similar risk and dependence profiles, but aren’t related to abortion.

As an example, the suit compares patients who are hemorrhaging after giving birth to patients bleeding from gunshot wounds. In both cases, medications are needed to stop the bleeding, but drugs used to treat gunshot wounds aren’t controlled, and thus come with fewer barriers to access.

Self, the pharmacist, is currently pregnant. Misoprostol is a commonly used drug in OB-GYN care. In the suit, Self alleges she is likely to require misoprostol during her pregnancy (it can treat miscarriages, postpartum hemorrhage and induce labor), and as a result, she is “enduring an unconstitutionally high risk that she will be discriminated against due to physical condition.”

The suit also argues the way the law passed the legislature last spring was unconstitutional.

Nancy Davis hold her daughter, Summer, and stands with Kaitlyn Joshua during a Free & Just event for reproductive freedom in New Orleans, LA, on Oct. 14, 2024.
Nancy Davis hold her daughter, Summer, and stands with Kaitlyn Joshua during a Free & Just event for reproductive freedom in New Orleans, LA, on Oct. 14, 2024.

Under the Louisiana Constitution, each bill and amendment must be focused on the same objective, which the suit says is meant to ensure a legislator doesn’t have to vote on one bill with two unrelated matters at its core.

The original bill, authored by Republican Sen. Thomas Pressly, made the crime of coerced criminal abortion by means of fraud, the act of giving a woman medications to induce an abortion against her knowledge or consent. Language to reclassify mifepristone and misoprostol came in an amendment presented during the final committee hearing on the bill, without prior notice. It was adopted within minutes.

The suit argues that criminalizing abortion by coercion is a separate goal of the law and that there “is no natural connection” between that objective, and the act’s restriction of the legal use of misoprostol and mifepristone by classifying them as controlled dangerous substances – making, they say, Act 246 unconstitutional.

Plaintiffs also argue that the amendment to classify the medications came with no public notice, meaning that doctors and “other stakeholders” had no time to review or prepare comments on the law. In the aftermath, nearly 300 doctors and medical students signed a letter urging the legislature not to schedule mifepristone and misoprostol because they do not have any risk of abuse or dependency, unlike the drugs they are scheduled alongside, and because they said doing so could harm women’s health in a state with one of the highest rates of maternal mortality in the developed world.

Last month, the American College of Obstetricians and Gynecologists, which represents 60,000 OB-GYNs across the U.S., condemned the law as “legislative interference in the practice of medicine.”

“Scheduling mifepristone and misoprostol as controlled substances demonstrates that opponents to abortion will risk the lives of all pregnant patients, even those who need obstetric and gynecologic care,” said ACOG president Stella Dantas.


Plaintiffs say the law interferes with women’s care

In addition to delaying hemorrhage treatment, the plaintiffs say the law will delay access to the drugs in the outpatient setting as well. It will add barriers to dispensing the medications and limit pharmacists’ ability to send patients to other pharmacies if the drugs are out of stock, potentially delaying care for women who are miscarrying or need misoprostol to aid in the insertion of an IUD, the suit claims.

Self said she’d already seen patients face delays in accessing misoprostol for a miscarriage as a result of Louisiana’s near-total abortion ban.

Under Act 246, Holt, the family physician, claimed she will not be able to dispense misoprostol or mifepristone from her clinic, as she had intended to, which she said could delay care for her patients.

Birthmark Doulas said many of its clients are given misoprostol to induce labor, and that its clients are induced at a higher than average rate because of health concerns that make pregnancy more dangerous, including high blood pressure, preeclampsia, and preterm labor. It argues the law will add barriers to the drug’s use for its patients, including in cases of postpartum hemorrhage, and make it harder for them to advocate for the best possible care for their clients.

As Louisiana taxpayers, Davis and Joshua claim in the suit that they are harmed by the law because it will increase tax burdens by requiring state resources for criminal investigations and oversight by the Louisiana State Board of Medical Examiners and the Louisiana Board of Pharmacy.

WWNO/WRKF is reaching out to the defendants for comment and will update this story.

Rosemary Westwood is the public and reproductive health reporter for WWNO/WRKF. She was previously a freelance writer specializing in gender and reproductive rights, a radio producer, columnist, magazine writer and podcast host.

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