Anti-abortion states that unsuccessfully tried to require doctors who perform abortions to have admitting privileges at local hospitals are revisiting those old laws, just in case there’s a future swing away from the recent Dobbs decision.
Louisiana is leading the way. It already asked the U.S. Court of Appeals for the Fifth Circuit to reinstate the admitting privileges law to discourage abortion access. That law, known as Act 620, was declared unconstitutional in 2020, but the legal landscape has changed because of the US Supreme Court decision Dobbs v. Jackson Women’s Health Organization that overturned Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey.
Attorneys general elsewhere who support anti-abortion policies should follow suit, according to Peter Breen, the Thomas More Society’s vice president and senior counsel. “Every pro-life state should have already moved to have any prior abortion injunction lifted” using federal motions for relief or their equivalents under state courts, he said in an email.
The anti-abortion group Americans United for Life recently published a “playbook” recommending attorneys general seek to vacate permanent injunctions blocking abortion restrictions.
“States should consider Rule 60(b)(5) motions to vacate these permanent injunctions and possibly reclaim attorney’s fees,” the guide says.
Alabama could be next. State Attorney General Steve Marshall has said his state would move to reverse an injunction blocking a requirement for doctors who perform abortions to have hospital admitting privileges.
It’s also on Oklahoma Attorney General John O’Connor’s radar, spokeswoman Madelyn Hague said in an email.
“The Attorney General is already at the Oklahoma Supreme Court defending Oklahoma’s broad abortion prohibitions from injunction, however, and he will await the Court’s final ruling there before determining further steps in regard to lesser regulations state officials have been enjoined from enforcing in the past,” she said.
Even before the Dobbs decision, state regulations prompted many clinics to close, Jenny Ma, senior staff attorney for the Center for Reproductive Rights, said in an interview.
“There’s no reason for a physician who works in an abortion facility to have admitting privileges from a health and safety standpoint,” she said.
The admitting privileges requirement would have no practical impact when Louisiana’s three abortion clinics close. “It’s certainly not necessary when there is no clinic,” Ma said.
Attempts to reinstate the requirement are a backstop of sorts. “If the pendulum swings the other way one day and if, say, Louisiana becomes a very abortion-friendly state 20 years, 30 years from now, they will have at least said, if they get a favorable ruling here, that admitting privileges must be in place,” she said. “Of course, there will be more lawsuits if that day ever comes.”
Ma said her organization, which represented the providers who originally challenged the requirement for admitting privileges, expects to file a brief Wednesday responding to Attorney General Jeff Landry’s arguments in a brief last week.
The high court “could not have been more clear that the underpinnings of the injunction against Act 620 have been swept away,” Landry’s brief said.
Exceptions at Risk
Missouri and North Dakota currently require doctors performing abortions to have hospital admitting privileges, but courts blocked similar laws in Louisiana and seven other states.
Laws in 10 states require doctors to have an agreement with another physician who has privileges, or a transfer agreement with a hospital.
Some state abortion bans allow some exceptions for medical emergencies or cases or rape. But adding requirements for abortion providers could render those exceptions moot and further limit access to abortion services, said Elizabeth Nash, principal policy associate for state issues at the Guttmacher Institute, a Washington-based research and policy organization that supports abortion rights.
“If somebody does meet one of the conditions for the exceptions, is that person then put in a situation of, ‘Can the provider meet all the criteria and all of the restrictions in order to provide care in a timely manner?’ That’s a real question mark,” Nash said.
“It’s this overlapping of restrictions and bans that really are designed to extinguish care entirely in the state,” she said.
Two doctors and the Hope Medical Group for Women originally challenged the Louisiana law that required doctors performing abortions to make formal agreements with local hospitals allowing them to directly admit patients and to provide services there. At the time, only one physician in Louisiana met the requirement, creating a substantial obstacle for people seeking abortions, they said.
A 2016 Supreme Court decision found a substantially similar Texas provision unconstitutional under Roe and Casey. Chief Justice John G. Roberts Jr. dissented in that case, but he cast the crucial vote in the subsequent decision blocking the Louisiana law.
The case is June Med. Servs., LLC v. Phillips, 5th Cir. App., No. 22-30425, appellant’s brief filed 8/17/22.
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