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Louisiana Renews Bid to Revive Abortion Doctor Privileges Law

Oct. 4, 2022, 3:24 PM

Louisiana once again is asking a federal trial court to do away with an order that blocked the state from requiring doctors who perform abortions to have admitting privileges at local hospitals.

The case is back in the trial court after the US Court of Appeals for the Fifth Circuit turned away Louisiana’s request to order Judge John W. deGravelles to vacate a 2017 decision permanently barring enforcement of the admitting privileges law. DeGravelles’ initial denial of Louisiana’s motion was the “functional equivalent” of a scheduling order, not an appealable decision on the merits, the Fifth Circuit said.

The injunction must be vacated because it was based on precedents that are no longer good law, the state told deGravelles in its latest filing.

Act 620, as it’s known in Louisiana, requires every doctor who performs abortions in the state to have the right to admit and treat patients at a hospital within 30 miles of the facility where they perform abortions. Admitting privileges are granted by hospitals, based on criteria determined solely by the individual facilities.

June Medical Services LLC, Bossier City Medical Suite, Choice Inc. of Texas, and two doctors challenged the law in 2014, arguing that it placed a undue burden on people seeking abortions. They argued that the provision was unlawful under the US Supreme Court’s opinions in Roe v. Wade and Planned Parenthood of Southeast Pennsylvania v. Casey. The top court declared a similar Texas admitting privileges provision unconstitutional in Whole Woman’s Health v. Hellerstedt in 2016.

DeGravelles agreed that Act 620 was unconstitutional on its face under then-existing Supreme Court precedent. Any “marginal” health benefits it provided would be “dramatically outweighed” by the substantial obstacles it placed in the way of people seeking abortions, the judge said. His decision was overruled by the Fifth Circuit, but later reinstated by the Supreme Court based on the Hellerstedt decision.

But the nation’s top court overruled Roe, Casey, and their progeny on June 24 in Dobbs v. Jackson Women’s Health Organization, Louisiana said in its filing Monday. Federal courts in Ohio, Alabama, and North Carolina already have vacated Roe- and Casey-based injunctions, as has the Fifth Circuit itself, it said.

Federal Rule of Civil Procedure 60(b)(5) compels the court to vacate the injunction, the state said. That rule 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,” it said.

An injunction can’t stand if “it rests upon a legal principle that can no longer be sustained,” 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.

Abortion is currently illegal in Louisiana, except in medical emergencies. The three abortion clinics that operated there announced plans to relocate to other states in mid-August.

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 the law’s challengers.

The case is June Med. Servs., LLC v. Phillips, M.D. La., No. 14-cv-525, renewed motion to vacate injunction filed 10/3/22.

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; Maya Earls at mearls@bloomberglaw.com