For supporters of abortion rights, whether broadly speaking or in narrow circumstances, things took a dark turn when the U.S. Supreme Court reversed its half-century-old precedent protecting at least some access to the procedure and sent the matter back to the states.
Louisiana was ready, having passed legislation over the years to immediately outlaw abortions in all but the most limited cases — with no rape or incest exception, for example — and to send providers who cross the line to prison.
Or maybe it wasn’t.
There’ve been signs of discomfort with the conditions that overnight went from hypothetical to all too real.
Cases of young children who’d been sexually assaulted in other anti-abortion states invoked horror. Some middle-of-the-road politicians appeared to have second thoughts, including Gov. John Bel Edwards, who'd signed legislation without rape and incest exceptions but who now advocates adding them.
Doctors and hospitals have openly struggled with how to treat pregnant patients facing complications for whom abortion is the standard care, when the law seems to mandate that they let conditions deteriorate before they can act. The media attention surrounding the pregnancy of Nancy Davis, denied an abortion in Baton Rouge for a fetus that didn’t develop a skull and had no chance of survival, was understandably intense.
Could a reckoning be coming, even here, in this most anti-abortion state — not full legalization but at least some more realistic and compassionate constraints?
Perhaps, and abortion rights supporters will be keeping an eye on how lawmakers, facing fall elections, act during the spring session.
But there’s also the possibility that things could stay as they are, or get worse.
Ben Clapper, who heads Louisiana Right to Life, told the Press Club of Baton Rouge last week that his group not only opposes removing the rape and incest restrictions but will push to make the law even more punishing by removing the existing exception for “medically futile” pregnancies.
“Medically futile” is not a medical term, which itself has caused a lot of angst among providers faced with caring for patients in deep distress even as they navigate a treacherous legal terrain. The Louisiana Department of Health has issued a list of specific conditions that fit the definition, but experts say it’s far from complete. Hospital lawyers are playing things cautiously and doctors say they’re operating in an atmosphere of fear that inhibits patient care.
Nina Breakstone, a New Orleans-area emergency medicine doctor, pleaded at a recent LDH hearing for more clarity and for protections for those who try to stay within the law’s bounds.
“This list as it was written has created an atmosphere of terror among my colleagues,” she said.
But the Louisiana Illuminator recently reported that LDH isn’t even willing to provide guidance beyond its written regulations.
“If something is considered to be an abortion under that statute, it’s really … more of a criminal nature and really it isn’t something that the [health] department has the authority to police,” department attorney Stephen Russo told doctors at a state health commission meeting, according to a recording obtained by the news organization. He said the proper authority to consult is Attorney General Jeff Landry.
That would be the same Jeff Landry who zealously embraces the anti-abortion laws, who greeted a temporary injunction soon after the high court decision with a warning that he could still come after those who acted while the ban was on hold — and who aims to be the state’s next governor.
“With regard to individual physicians’ comfort reaching out to the AG, I suspect they would not” feel comfortable, Joseph Biggio, system chair of Women’s Services and Maternal-Fetal Medicine for Ochsner Health, responded last week, according to the Illuminator.
You think?
Another new report suggested that women who could qualify for abortions under Louisiana’s stringent rules aren’t getting them, with providers saying there’s an environment of overly strict scrutiny and fear even when the procedure is technically allowed under the law.
“I do think it’s causing a chilling effect based on what I’ve seen,” said Ushma Upadhyay, an author of the study.
For some, that chill is a feature, not a bug, of the current landscape.
The question now is whether these conditions are really what most Louisianans want — and if not, what they intend do about it.