Abortion Bans

NEAR-TOTAL

Louisiana amended and re-enacted its pre-Roe abortion ban in 1991, but the ban remains unconstitutional and unenforceable.  La. Rev. Stat. Ann. § 14:87 (Enacted 1942; Amended and Re-enacted 1991).

The ban prohibits abortion by anyone other than the pregnant woman unless the abortion is necessary to preserve the woman's life or the pregnancy was the result of rape or incest.  A rape victim must: (1) report the rape to law enforcement officials within seven days of having the capacity to report the rape; (2) obtain treatment within five days of having the capacity to obtain treatment to "prevent pregnancy" and to determine that she was not pregnant prior to the rape; and (3) have the abortion within 13 weeks of conception.  An incest victim must: (1) have the crime reported to law enforcement officials; and (2) have the abortion within 13 weeks of conception.  A person who performs a prohibited abortion will be imprisoned at hard labor for one to ten years and will be fined from $10,000 to $100,000. La. Rev. Stat. Ann. § 14:87 (Enacted 1942; Amended and Re-enacted 1991).

A court held that this ban is unconstitutional and unenforceable because it imposes an undue burden on women seeking an abortion.  Sojourner T. v. Edwards, 974 F.2d 27 (5th Cir. 1992), cert. denied, 507 U.S. 972 (1993).

A court held additional provisions of the ban unenforceable: (1) a person who publicizes the availability of abortion services will be imprisoned for up to one year, fined up to $5000, or both; and (2) a person who distributes or advertises abortifacients will be imprisoned for up to six months, fined up to $500, or both.  La. Rev. Stat. Ann. §§ 14:87.4 (Enacted 1973), 14:88 (Enacted 1942); Weeks v. Connick, 733 F.Supp. 1036 (E.D. La. 1990).

NEAR-TOTAL WITH DELAYED EFFECTIVE DATE ("TRIGGER" BAN)

In 2006, Louisiana enacted a near-total ban on abortion, to become effective if the Supreme Court overturns Roe v. Wade, or if a constitutional amendment is adopted that allows states to ban abortion.  The ban prohibits any person from administering to any pregnant woman or prescribing or procuring for any pregnant woman any medicine, drug, or substance with intent to procure an abortion, unless the performance of an abortion is necessary to preserve the woman's life.  The ban also includes a very limited health exception for circumstances under which an abortion is necessary "to prevent the serious, permanent impairment of a life-sustaining organ of a pregnant woman."  A person who performs a prohibited abortion could be imprisoned for up to 10 years, and fined up to $100,000.  La. Rev. Stat. Ann §§ 40:1299.30 (Enacted 2006), 14:87 (Enacted 1964, Amended 2006).

BAN ON ABORTION PROCEDURE

Louisiana outlaws a safe second-trimester abortion procedure without an exception to protect a woman's health.  S.B. 161, 2007 Leg., 33rd Sess. (La. 2007); H.B. 614, 2007 Leg., 33rd Sess. (La. 2007) (to be codified at La. Rev. Stat. Ann. § 14:32.10, 40:1299.35.17).

The Louisiana law makes the performance of certain previability, second trimester abortions a felony and imposes a criminal penalty of imprisonment at hard labor for one to ten years and a fine of $10,000 to $100,000 unless the procedure is necessary to save the life of the woman whose life is endangered by a physical disorder, physical illness or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.  S.B. 161, 2007 Leg., 33rd Sess. (La. 2007); H.B. 614, 2007 Leg., 33rd Sess. (La. 2007) (to be codified at La. Rev. Stat. Ann. § 14:32.10, 40:1299.35.17).

There is also a Federal Abortion Ban, which applies nationwide regardless of state law.  The federal ban prohibits the performance of certain second trimester abortions and does not contain an exception for a woman's health.  In April 2007, the U.S. Supreme Court upheld the ban, making it the first time since Roe v. Wade that the Court has upheld a ban on a previability abortion procedure.  Click here to read more about the Federal Abortion Ban.

Biased Counseling & Mandatory Delay

A woman may not obtain an abortion until at least 24 hours after the attending or referring physician tells her, orally, in person, and in private:  (1) a description of the proposed method; (2) the alternatives to abortion; (3) the probable gestational age of the fetus and, if the fetus is viable or has reached the gestational age of 24 weeks, that the "unborn child" may be able to survive outside the womb, the woman has the right to request the physician to use the method most likely to preserve the life of the fetus, and that if the "unborn child is born alive," attending physicians are legally obligated to take "all reasonable steps necessary to maintain the life and health of the child"; (4) the probable anatomical and physiological characteristics of the fetus; (5) the risks associated with abortion and with carrying the pregnancy to term; and (6) the name of the physician who will provide the abortion.

In addition, at least 24 hours prior to an abortion, the woman must receive:  (1) orally, in person, and in private, a state-mandated lecture from a physician, registered nurse, licensed social worker, psychologist, or licensed counselor that includes that:  (a) medical assistance benefits may be available for prenatal care, childbirth, and neonatal care; (b) the "father" of the fetus is liable for child support even if he has offered to pay for the abortion; and (c) she may withhold/withdraw her consent without loss of any state or federally funded benefits; and (2) state-prepared materials that:  (a) describe with color drawings or pictures the anatomical and physiological characteristics of the "unborn child" at two-week gestational increments, including the possibility of survival; (b) describe methods and medical risks associated with each method and with carrying a pregnancy to term; (c) provide a comprehensive list of public and private agencies and services, including adoption agencies, available to assist the woman through pregnancy and upon childbirth, with a 24-hour toll-free hotline; (d) provide information about medical assistance benefits for prenatal care, childbirth, and neonatal care and the "father's" support obligations; (e) state that a physician who provides an abortion without a woman's "informed" consent may be liable to her for damages in a civil action; (f) indicate that the law permits adoptive parents to pay the costs of prenatal care, childbirth, and neonatal care; and (g) include the following statement:  "There are many public and private agencies willing and able to help you to carry your child to term, and to assist you and your child after your child is born, whether you choose to keep your child or place her or him for adoption.  The state of Louisiana strongly urges you to contact them before making a final decision about abortion.  The law requires that your physician or his agent give you the opportunity to call agencies like these before you undergo an abortion."

La. Rev. Stat. Ann. § 40:1299.35.6 (Enacted 1978; Last Amended 1995).

If a woman is considering abortion as a result of rape or incest she is to be offered the same "informed consent" information, but without the 24-hour delay.

La. Rev. Stat. Ann. § 40:1299.35.7 (Enacted 1994; Last Amended 2005).

Counseling Ban/Gag Rule

No person employed by the state of Louisiana or employed by a social-service agency that receives government assistance shall recommend abortion unless it is a physician acting to preserve a woman's life.  La. Rev. Stat. Ann. § 40:1299.34 (Enacted 1973; Last Amended 1978).

Other Anti-Choice Law

Louisiana has created additional threats to privacy and choice by adding anti-choice language to its state code to express its opposition to abortion and its intent to restrict the right to choose to the greatest extent possible.

"The Legislature does solemnly declare and find in reaffirmation of the longstanding policy of this State, that the unborn child is a human being from the time of conception and is, therefore, a legal person for purposes of the unborn child's right to life and is entitled to the right to life from conception under the laws and Constitution of this State. . . . [I]f those [abortion-related] decisions of the United States Supreme Court are ever reversed or modified or the United States Constitution is amended to allow protection of the unborn then the former policy of this State to prohibit abortions shall be enforced."  La. Rev. Stat. Ann. § 40:1299.35.0 (Enacted 1981).  While it is unclear whether this provision alone could be used to restrict abortion, Louisiana has also enacted a more detailed abortion ban that is intended to take effect if Roe v. Wade is overturned.

Public Facilities Restriction

No public funds may be used to provide facilities for an abortion, except in cases where the procedure is necessary to preserve the woman's life or the pregnancy is the result of rape or incest reported by the woman to a law enforcement official unless her physician certifies that she is too incapacitated to report the crime.  La. Rev. Stat. Ann. § 40:1299.34.5 (Enacted 1978), § 40:1299.35.7 (Enacted 1994).

The statute also provides that if the federal requirement that the state fund abortion under Medicaid in cases of rape and incest no longer applies, no public funds may be used for, to assist in, or to provide facilities for an abortion except in cases of life endangerment.  La. Rev. Stat. Ann. § 40:1299.34.5 (Enacted 1978; Last Amended 1994).

Refusal to Provide Medical Services

ABORTION REFUSAL CLAUSE

Louisiana allows certain individuals or entities to refuse to provide abortion services.

To whom does the refusal clause apply?  Physicians, nurses, students or other persons or corporations, workers or employees in any social service agency, or hospitals, clinics, or other facilities or institutions.

What does the refusal clause allow?  No physician, nurse, student, or other person or corporation may be held civilly or criminally liable or be discriminated against for refusing to recommend, counsel, perform, assist, or accommodate an abortion for any reason.  No social service agency employee or worker may be held civilly or criminally liable or be discriminated against for refusing to take part in, recommend, or counsel an abortion.

No hospital or facility of any kind may be held civilly or criminally liable or be discriminated against for refusing to permit or accommodate abortion.  No hospital or medical facility may be denied government assistance, be discriminated against, or be pressured in any way for refusing to permit its facilities, staff, or employees to be used in any way for the purpose of performing an abortion.

Does the law require the refusing individual or entity to notify the persons affected?  The law requires refusing individuals to notify the persons affected, but does not require refusing entities to notify the persons affected.

Are there circumstances under which a refusal clause may not be exercised?  Yes.  The refusal clause does not apply to medical emergency situations when individuals refuse to provide services.  In addition, the law specifies that individuals' refusals can only be exercised "to the extent that patient access to health care is not compromised."

Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for abortion services?  No.

Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause?  Possibly, in some circumstances.  The law stipulates that, in the event that an individual refuses to provide medical services, a health-care facility must have "sufficient staff to provide patient care."

La. Rev. Stat. Ann. §§ 40:1299.31 to .33 (Enacted 1973). H.B. 517, 35th Leg., 2009 Reg. Sess. (La. 2009) (Enacted 2009) (to be codified at La. Rev. Stat. Ann. §§40:1299.35.9, 40:1300:291).

Restrictions on Low-Income Women's Access to Abortion

Louisiana prohibits public funding for abortion for women eligible for state medical assistance for general health care unless the procedure is necessary to preserve her life or the pregnancy is the result of rape or incest reported to a law enforcement official unless her physician certifies that she is too incapacitated to report the crime.  La. Rev. Stat. Ann. §§ 40:1299.34.5 (Enacted 1978; Last Amended 1994), .35.7 (Enacted 1994; Last Amended 2005); Medicaid of Louisiana, 2007 Professional Services Provider Training, 5 (Fall 2007) http://www.lamedicaid.com/provweb1/ProviderTraining/packets/2007ProviderTrainingMaterials/20071011_20Professional_20Training_20Packet.pdf.  See Hope Med. Group for Women v. Edwards, 63 F.3d 418 (5th Cir. 1995), cert denied, 517 U.S. 1104 (1996) (holding that a previous Louisiana statute that prohibited the state Medicaid program from funding abortion except in cases of life endangerment conflicted with federal law requiring participating states to provide a broad scope of medical services, including those not typically associated with life and death situations).

The statute also provides that if the federal requirement that the state fund abortion under Medicaid in cases of rape and incest no longer applies, no public funds may be used for abortion except in cases of life endangerment.  La. Rev. Stat. Ann. § 40:1299.34.5 (Enacted 1978; Last Amended 1994).

Restrictions on Young Women's Access to Abortion

Louisiana law restricts young women's access to abortion.

Is the law enforceable?  Yes, except for the provision requiring parental notice of the judicial bypass proceeding, which a federal court held unconstitutional and unenforceable as a violation of the federal due process clause and the Supreme Court's anonymity requirement in Bellotti v. Baird.  Causeway Med. Suite v. Ieyoub, 109 F.3d 1096 (5th Cir. 1997).

Who is considered a minor?  A young woman under the age of 18 who is not emancipated.

What is required - parental consent or parental notice?  Consent.

Who must provide consent?  One parent.

Are there other trusted adults who may provide consent instead?  No.

What is the process for obtaining consent?  A young woman may not obtain an abortion unless the attending physician secures written and notarized consent from one parent.

May the parental mandate be waived if a young woman is a victim of rape or incest?  No.

May the parental mandate be waived if a young woman is a victim of child abuse?  No.

May the parental mandate be waived if a young woman's health is threatened?  Yes, in the case of a "medical emergency."  A physician may perform an abortion if "the continuation of the pregnancy poses an immediate threat and grave risk to the life or permanent physical health of the pregnant woman."

May the parental mandate be waived under any other circumstances?  Yes, the young woman may try to obtain permission from a judge.

If a young woman must obtain permission from a judge, what is the process?  She must secure a court order finding, by clear and convincing evidence, either that she is mature and well informed enough to make her own decision or that an abortion is in her best interests.  Prior to the hearing, the court may require the minor to participate in a mental health evaluation and counseling session.  An unconstitutional and unenforceable provision of the law requires that if the court finds that a minor is not mature and well informed and that notifying her parents is in her best interests, an order shall be issued to the minor's parents calling them to a hearing to advise and counsel the minor and aid the court in making its determination of whether an abortion is in the minor's best interests.

Are there other significant requirements under the law?  No.

Has a court considered the constitutionality of this law?  Yes.  A court held that the provision concerning parental notice of the bypass proceeding is unconstitutional and has issued a permanent injunction prohibiting its enforcement.  Causeway Med. Suite v. Ieyoub, 109 F.3d 1096 (5th Cir. 1997) (also holding that a previous provision permitting a court ordered counseling and evaluation session for minors that did not provide for an expeditious resolution of the minors' bypass applications was unconstitutional), cert. denied, 522 U.S. 943 (1997).  A court has denied a motion to file a supplemental complaint and re-open this case.  Causeway Med. Suite v. Ieyoub, No. Civ. A. 95-2164 (E.D. La. Aug. 17, 1999).

Other information about the law: Another statute, declared unconstitutional and unenforceable, provides that a minor may not obtain an abortion until after her parents, or if married, her husband, have been advised of their right to refuse an abortion for the minor and have provided written consent acknowledging that a full explanation of the abortion procedure to be performed has been given and is understood.  La. Rev. Stat. Ann. §40:1299.33(D) (Enacted 1973); Jackson v. Guste, No. 74-2425 (E.D. La. Feb. 20, 1976), aff'd in part and vacated in part on other grounds, 429 U.S. 399 (1977).

Spousal Consent

A court held that Louisiana's husband consent requirement for abortion is unconstitutional and unenforceable.  Jackson v. Guste, No. 74-2425 (E.D. La. Feb. 20, 1976), aff'd in part and vacated in part on other grounds, 429 U.S. 399 (1977).

This law provides that a married minor may not obtain an abortion until after her husband has been advised of his right to refuse an abortion for the minor, and has provided written consent acknowledging that a full explanation of the abortion procedure to be performed has been given and is understood.  La. Rev. Stat. Ann. § 40:1299.33(D) (Enacted 1973).

Targeted Regulation of Abortion Providers (TRAP)

Louisiana imposes a variety of burdensome requirements on abortion providers that are not imposed on other health care providers, including: 

Restrictions on Where Abortions May Be Performed

Among the most common TRAP regulations are those restricting the performance of abortions to hospitals or other specialized facilities, which place medically unnecessary and costly requirements on doctors and can decrease the availability of abortion care for women. Louisiana has such regulations, including:

Any provider other than a hospital or an ambulatory surgical center - including a private physician - must become licensed as an "outpatient abortion facility" if the provider performs any second trimester or five or more first trimester abortions per month.  La. Rev. Stat. Ann. §§ 40:2175.3, :2175.4 (Enacted 2001). 

Without reference to medical necessity, outpatient abortion facilities are required to perform abortions only in segregated procedure rooms removed from general traffic that are a minimum of 120 square feet, exclusive of vestibule, toilets, or closets.  Abortion Facility Licensure, 29 La. Reg. 902, 906 (June 20, 2003). 

Outpatient abortion facilities must have a governing body responsible for: organization and administration of the facility; designation of an administrator and a medical director; maintenance of the physical premises; establishment of a system of quality assurance, and a host of other responsibilities.  Abortion Facility Licensure, 29 La. Reg. 902, 904 (June 20, 2003). 

Louisiana also has a statute that creates special medical malpractice liability for abortion providers.  The law states that any person who performs an abortion is liable to the "mother" of the "unborn child" for any damages occasioned or precipitated by the abortion.  The law permits suits to be brought against abortion providers for up to ten years after the procedure.  La. Rev. Stat. Ann. § 9:2800.12 (Enacted 1997).

Restrictions on Who May Perform Abortions

Louisiana prohibits certain qualified health care professionals from performing abortions.

Only a physician licensed to practice medicine in the state may perform an abortion.  La. Rev. Stat. Ann. § 40:1299.35.2(A) (Enacted 1978; Last Amended 1999), La. Rev. Stat. Ann. § 40:1299.35.1(7) (Enacted 1978; Last Renumbered 2001).