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Louisiana Fails in Bid to Revive Abortion Doctor Law, for Now

Sept. 21, 2022, 3:19 PM

Louisiana must wait to learn if it can revive a law that requires doctors who perform abortions to have admitting privileges at hospitals near their clinics, the Fifth Circuit said Wednesday.

The appeal was prematurely filed, as a federal trial court hasn’t yet issued a final order on the state’s motion to vacate an injunction that’s been in place for more than five years, the US Court of Appeals for the Fifth Circuit said in an opinion dismissing the appeal for lack of jurisdiction.

The district court’s initial denial of Louisiana’s motion, and its subsequent denial of a motion for reconsideration, were the “functional equivalent” of scheduling orders, Judge E. Grady Jolly said in the opinion. And district judges have discretion to control their dockets, he said.

The district court said in its orders that it would take up the matter after both sides had an opportunity to brief it, thereby denying only expedited consideration, the appeals court said. It didn’t touch on the merits.

The state also didn’t demonstrate an entitlement to mandamus relief, as the “district court acted prudently, with no evident dilatory purpose,” the appeals court said.

Judges James L. Dennis and Stephen A. Higginson joined.

Louisiana had argued that the legal principles on which the lower court based its injunction are no longer good law following the US Supreme Court’s June 24 decision in Dobbs v. Jackson Women’s Health Organization, in which it overruled Roe v. Wade. The order, therefore, can be vacated under Federal Rule of Civil Procedure 60(b)(5), which provides for relief from a judgment that’s “based on an earlier judgment that has been reversed or vacated,” or when “applying it prospectively is no longer equitable,” the state said.

Louisiana is following a strategy mapped out by an anti-abortion group that’s encouraging officials throughout the country to ask courts to vacate orders that previously blocked abortion restrictions based on now-defunct precedent. In this case, that includes a 2020 Supreme Court decision that upheld the very injunction at issue here.

The Louisiana Attorney General’s Office and Louisiana Department of Justice represent the state and Health Secretary Courtney Phillips. Morrison & Foerster LLP; Rittenberg, Samuel & Phillips LLC; and the Center for Reproductive Rights represent June Medical Services, Bossier City Medical Suite, Choice Incorporated of Texas, and two doctors, who challenged the restriction.

The case is June Med. Servs., LLC v. Phillips, 5th Cir., No. 22-30425, 9/21/22.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com; Brian Flood at bflood@bloomberglaw.com