Fifth Circuit upholds Louisiana abortion clinic restrictions
Fifth Circuit upholds Louisiana abortion clinic restrictions
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[JURIST] The US Court of Appeals for the Fifth Circuit [official website] on Friday upheld [opinion, PDF] Louisiana’s Act 490, which allows the Department of Health and Hospitals (DHH) [official website] to revoke an abortion clinic’s license immediately after a regulation violation, rather than allowing the abortion clinic time to comply with the regulation. Act 490, approved in 2010, amended the Outpatient Abortion Facility Licensing Law of 2001 [text] to remove a previous stipulation that a clinic in violation of regulations could only be shut down after “substantial failure” to comply with the regulations. An anonymous doctor and five of the seven abortion clinics in Louisiana challenged the constitutionality of the amendment rather than waiting until one of the clinics was closed in violation of the law. The court ruled 2-1 that the claim was not ripe, deciding that no justifiable harm had occurred to strike down the law, though did not preclude the possibility of future constitutional challenges. In dissent, Judge James Dennis argued that the court had betrayed its responsibility to the plaintiffs:

In dismissing as unripe this pre-enforcement challenge to an anti-abortion statute, brought by abortion providers expressly regulated by the law in question, on behalf of themselves and their patients, the majority does for the first time something neither this court nor the Supreme Court has ever done. This result is alarming not only because it constitutes an abdication of the court’s obligation to exercise its jurisdiction, but also because it disregards harms to the sensitive and constitutionally-protected interests advanced by plaintiffs. Our precedents do not require us to withhold—and thus likely effectively deny—federal court consideration of plaintiffs’ claims.

The DHH praised the ruling [press release] stating, “We are reassured by the court’s decision and continue to focus on promoting high quality health care for all of our residents.”

Louisiana passed new abortion restrictions [JURIST report] in June. The new regulations increase the waiting period between a mandatory ultrasound and the procedure itself from two to 24 hours and require the doctor to describe the visible features on the ultrasound and “make audible” the heartbeat of the fetus when possible. Governor Bobby Jindal also signed a law making it a criminal offense to perform an abortion without a medical license. Reproductive rights [JURIST backgrounder] have become increasingly controversial across the US. The Center for Reproductive Rights (CRR) [advocacy website] released its annual mid-year report [JURIST report] summarizing some of the trends observed in 2012 on the most significant abortion restrictions passed in 2012, as well as CRR’s ongoing legal responses to several measures. The report states that “[I]n at least 17 states, legislation designed to restrict women’s access to reproductive health care and impinge on their constitutional rights has already become law. As the year continues, and more restrictive bills are considered, pro-choice advocates and legislators in several states will have the opportunity to prevent these harmful public health choices from being made in their own states.”