Texas isn't the only state attempting to restrict women's access to reproductive health. Louisiana did too, and a recent federal court decision shows how the Louisiana law could have implications in Texas.
The New Orleans Times-Picayune reported earlier this month that the Fifth U.S. Circuit Court of Appeals stopped a challenge by doctors and abortion providers to a 1997 Louisiana law that treats physicians who provide abortions differently from those who do not.
According to the Times-Picayune article, the 1997 law, known as Act 825, created a ten-year statute of limitations for a woman to sue her abortion provider. It also bars abortion providers from a state-run medical malpractice review process and to a state fund designed to defray the costs of satisfying malpractice judgments against them that arise from abortion procedures.
To see how the law cuts back access to abortion, read below the jump. The court ruled that the doctors and other providers did not have standing to challenge the law.
The upshot, according to RH Reality Check, is that physicians who provide safe, effective abortions, face an undue risk in actually providing such a service. While the state of Louisiana does not ban abortions – constitutionally, it cannot – that undue risk which causes physicians to discontinue providing abortions translates to an undue burden on women seeking abortions, when no one will provide it to them. That undue burden is forbidden by the Constitution. The Fifth Circuit felt that was insufficient to justify striking down the law. The court ruled that the doctors did not – and could not – have standing until they were actually sued.
As explained by RH Reality Check, physicians with access to the fund are liable only for the first $100,000 of a patient's injuries. The fund picks up the rest. However, on a claim arising from an abortion, the physician is liable for the entire judgment.
Further, not only does the law extend the statute of limitations to ten years following the abortion (most states have a limitations period in the neighborhood of two years), the law allows the mother to sue for damages to the fetus – in short, for having second thoughts. Worse, it's a strict liability law. A plaintiff bringing a claim does not have to show that the doctor was negligent – merely, that the doctor performed the procedure.
Normally, laws in Louisiana should not much concern those with controversies in Texas. However, not only does the Fifth Circuit Court of Appeals hear and decide appeals concerning state laws in Louisiana, it does so in Texas and Mississippi as well. It decides whether those laws are constitutional or unconstitutional. Absent an appeal to the United States Supreme Court – which is infrequently granted regardless – decisions of the Fifth Circuit are the final arbiter of what laws are constitutional in these three states. Therefore, when the court decides that such a Louisiana statute does not violate the federal constitution, any law in Texas or Mississippi tailored to reflect the Louisiana rule stands a frighteningly good chance of passing constitutional muster. That should give pause to defenders of women's rights in this state.