Women in Louisiana could lose all access to abortion services if the state succeeds in enacting a secretive overhaul of its clinic regulations. The requirements are so stringent that not one of the five clinics currently operating in Louisiana would meet them, according to a lawyer advising the clinics. The new regulatory framework would also impose a de facto thirty-day waiting period for many women—an exceptional requirement.
“What it amounts to is a back-door abortion ban,” said Ellie Schilling, a New Orleans attorney. “The way the [Department of Health and Hospitals] went about passing these regulations was in a secretive and undemocratic way. The public definitely doesn’t know what’s going on.”
DHH enacted the overhaul just before Thanksgiving, when it passed the rules as an emergency measure, effective immediately—exempting them from the normal comment period. None of the clinics were given notice; one heard about the declaration of emergency from an anti-abortion protester.
It isn’t clear what emergency the agency was responding to. There has been virtually no reporting on the new rules, and DHH did not respond to questions submitted Monday. The Declaration of Emergency states that the agency proposed the licensing standards in order to comply with two acts passed by the Louisiana legislature in 2013, but a complete overhaul goes well beyond their demands. DHH formally declared its intentions to make the emergency rules permanent in December.
According to Schilling, the law gives the agency the ability to shut down every existing clinic in Louisiana immediately by imposing new space requirements that none of the existing clinics meets. Providers would lose some of their rights to appeal noncompliance citations, while new and complex documentation and staffing requirements create more opportunities for DHH to cite clinics for deficiencies. “Deficiencies are used to create this impression of clinics being repeat offenders, and that’s a basis for revoking their license,” explained Schilling.
The regulatory overhaul would also give the state tools to prevent new clinics from getting a license. Proposed facilities—like a $4.2 million Planned Parenthood health center on South Claiborne Avenue in New Orleans—would have to prove to DHH that their services are needed; it’s unclear what criteria the agency would use to determine need. “It certainly seems that one intention is to prohibit Planned Parenthood from entering the market,” Schilling said. (Planned Parenthood clinics in Louisiana do not currently offer abortion services. “We are evaluating all our options” in light of the regulations, a spokesperson said.)
The new rules place a significant, unjustified burden on women by requiring that they undergo blood tests at least one month before an abortion procedure. That means that unless a patient happens to have gone to the doctor previously and had those tests done by chance, she will face a mandatory thirty-day waiting period.
“I’ve never seen anything like this. It’s pretty outrageous,” said Elizabeth Nash, state issues manager at the Guttmacher Institute, a women’s health policy group.
Louisiana already has a twenty-week cutoff, and so the waiting period could dramatically shorten the window in which women are legally allowed to have abortions. There is no medical rationale for conducting those particular tests so far in advance; they are routinely conducted by providers prior to an abortion, and legislation passed in 2003 that tightened the laws governing Louisiana’s abortion providers stipulated that they had to be done within thirty days of the procedure. To the contrary, forcing women to delay the procedures increases their expense, and raise the risk of complications.
Dozens of other states have passed waiting periods or regulations, known as Targeted Regulation of Abortion Providers, or TRAP laws, which single out abortion providers with burdensome rules. But Nash said that a de facto thirty-day waiting period combined with requiring clinics to prove need for their services makes Louisiana’s law striking. “It’s a great way to eliminate access,” said Nash.
All that’s stopping the state from completing the overhaul, Schilling said, is going through the motions of a public hearing. One is scheduled for Wednesday morning in Baton Rouge, but bad weather threatens to cancel it. It isn’t clear if the state would hold another hearing, as it was already scheduled at the very end of the comment period. Legal challenges would surely follow, but as Nash warned, rolling back clinic regulations in the courts is challenging.
“As it is right now, you have to go to the major cities to have procedure done. If these clinics close, where will the patients go? Then what are we back to? Back street abortions?” said Missy Cuevas, who is fighting a legal battle with the state after her New Orleans clinic lost its license a little over a year ago. With more than two decades of work in women’s health, Cueva has seen the burden on Louisiana women grow as regulators clamp down. Five to ten women still call every day looking for services, even though she’s been closed for so long.
“If we make it any more difficult, where are the patients going to go—Houston? Atlanta? My patients can’t afford to go to Baton Rouge from New Orleans, much less to Houston or Atlanta. It’s going to force women to go back to what they used to do before, and women will die.”
UPDATE: On Monday night, DHH press secretary Olivia Watkins informed The Nation that the agency would rescind the language regarding the 30-day period for blood tests. Watkins also said the rule would be revised to clarify that square footage requirements apply only to new or rennovated faciltities. A public hearing regarding the rule changes will take place in February.
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