The attorney general continued: “Plaintiffs refuse to grapple with those facts, and instead engage in ad hominem attacks on highly respected Fifth Circuit judges. We will continue to fight to defend our laws.”
Act 620 was challenged in the wake of the Supreme Court's 2016 Whole Women’s Health v. Hellerstedt decision.
In that case, the high court struck down a Texas law that required doctors performing abortions to have admitting privileges at a nearby hospital, and abortion clinics to meet the standards for ambulatory surgical centers. In the 5-3 vote, the majority found that the law put an “undue burden” on a women’s right to an abortion, posing a “substantial obstacle” to that right without showing the necessary benefits of its regulations to women’s health.
Considering Louisiana's law in light of Whole Women’s Health v. Hellerstedt, the Fifth Circuit wrote that “the facts in the instant case are remarkably different from those that occasioned the invalidation of the Texas statute in WWH.”
“Here, unlike in Texas, the Act does not impose a substantial burden on a large fraction of women under WWH and other controlling Supreme Court authority. Careful review of the record reveals stark differences between the record before us and that which the Court considered in WWH.”
“The Louisiana Act passes muster even under the stringent requirements of WWH,” wrote Circuit Judge Jerry E. Smith.
Similarly, the Eighth Circuit Court of Appeals in September ruled that Missouri may enforce its own law mandating that doctors who perform abortions have hospital privileges and that abortion clinics to have the same standards as similar outpatient surgical centers.
The Eighth Circuit also cited the Hellerstedt case, saying that decision analyzed purported benefits of the law at issue related to abortion in Texas, not Missouri, and that it found courts should consider the asserted benefits of a law.
Fifth Circuit Judge James L. Dennis dissented from the court's decision not to rehear the challenge to Act 620, asserting it is “in clear conflict” with the Hellerstedt decision and that “the panel majority’s attempt to distinguish WWH is meritless because it is based on an erroneous and distorted version of the undue burden test required by WWH and Planned Parenthood of Southeastern Pa. v. Casey.”
When the Unsafe Abortion Protection Act was passed in 2014, there were five abortion clinics in Louisiana. By the time the Fifth Circuit upheld the law in September 2018, there were three, in New Orleans, Baton Rouge, and Shreveport.
The day before it declined to rehear the challenge to Act 620, the Fifth Circuit vacated a previous injunction barring Texas from stripping Planned Parenthood affiliates of Medicaid funding.
Circuit Judge Edith Jones affirmed that Texas has the right to exclude a healthcare provider from Medicaid funds, and criticized the Planned Parenthood affiliates’ argument that the Office of Inspector General has insufficient expertise to determine the qualifications of abortion providers.
(Story continues below)
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