Last week, a panel of 3 judges from the 5th US Circuit Court of Appeals ruled that a group of Louisiana abortion providers lack the standing to challenge a 1997 law which forces them to pay for medical malpractice damages while also denying them access to the state-run insurance program which all other doctors can opt into.


The case begins back in the 1970s when doctors were fleeing the state of Louisiana because medical malpractice insurance was too expensive. To make sure that doctors could afford to keep practicing, the state enacted the Louisiana State Compensation Fund.  The fund is a lot like an insurance program for doctors which covers the cost of malpractice suits for doctors (they are liable for the first $100k) and ensures victims get compensated.  The fund also has a panel which assesses malpractice cases to determine whether the physician was in violation of medical standards.


Then, in 1997, Louisiana passed a law which was designed to regulate abortion providers out of business.  The law, Act 825, says that a woman can sue an abortion doctor for up to 10 years after the procedure.  She can sue for damages to herself or even for damages to her unborn child!  The law then goes on to say that medical malpractice laws – including the Compensation Fund – are not applicable to abortion procedures.


What does this 1997 law mean to abortion providers in Louisiana?


For starters, it will make abortion too expensive for clinics to perform because they will have to find independent insurance or pay the costs of any malpractice case (even if malpractice didn’t actually occur).  If abortion is too expensive to offer, then providers will stop offering the service or leave the state – thus impinging on a woman’s right to choose.  Further, the law says that it is legally acceptable to treat abortion differently than other medical procedures – which violates the 14th Amendment of the Constitution which calls for equal protection in the law.


A group of abortion providers challenged the law and were victorious.  US District Judge Helen Berrigan ruled last year that the law could not be enacted because it was unconstitutional and created undue burden on women’s right to choose.  Now, that ruling has been overturned.


The Fifth Court panel decided that it is constitutionally acceptable to treat abortion providers differently than other medical providers.  Their reasoning was that it is only the procedure and not the providers who are being singled out.  They also didn’t think that a law which would drive all abortion providers out of Louisiana would put an undue burden on a woman’s access to abortion.


Now, the abortion providers have to decide whether to take their case further.   They can request to have their case reheard or go to the Supreme Court.  Neither option is looking too promising though.  The scariest thing is that this ruling can be used as precedent to enforce TRAP laws in other states which could effectively drive abortion clinics out of entire states.

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