This week, a panel of judges on the U.S. Court of Appeals for the Fifth Circuit ruled a group of Louisiana abortion providers lack the standing to challenge the constitutionality of a 1997 law that exposes them to malpractice damages related to providing abortions but denies them access to a state-run fund that helps pay for malpractice judgment. The panel also ruled
that the law does not impose an undue burden on a right to choose abortion even if the effect of that law limits the number of providers who perform abortions. The decision sets a dangerous precedent for states seeking to evade judicial review of laws that violate federal constitutional rights and a new front in the right’s drive to bankrupt reproductive health-care providers.
In the early 1970s, Louisiana’s health-care system was in crisis due in large part to a lack of affordable medical-malpractice insurance. Doctors were leaving the state, because it was too expensive to insure their practices, while others went ahead and practiced without insurance, leaving both patients and providers exposed to devastating financial consequences in the event of a medical accident. To deal with the crisis, the state passed the Medical Malpractice Act of 1975, a reform package that, among other things, created the Louisiana Patient Compensation Fund. The fund was effectively a state insurance fund designed to do two things: encourage a stable market for malpractice insurance while ensuring that victims of malpractice could recover
for their injuries. In order to control costs, the fund capped compensation for victims at $500,000, including interests and costs associated with any litigation. That cap was lifted slightly in 1984, when the legislature increased the compensation available to the severely injured, authorizing payment of their medical expenses as they were incurred.
Health-care providers that participate in the state insurance fund experience three main benefits. They are liable for only the first $100,000 of a patient’s injuries;
they can self-insure through the fund, meaning they don’t need to obtain malpractice insurance from a private insurer to be part of the fund; and in the event of a malpractice claim providers are entitled to an opinion of a panel of medical experts, which must prepare a report—admissible in a malpractice trial—assessing whether the provider violated the applicable standard of care.
Until 1997, all health-care providers were eligible to participate. The only requirements were they had to pay an annual surcharge, which
was the equivalent of a premium, calculated toward the risk associated with their particular area of practice, and they had to demonstrate financial responsibility to the fund by either a $125,000 cash deposit or by acquiring $100,000 of malpractice insurance, which spreads the financial risk and helps subsidize the fund.
But, in 1997, Louisiana passed Act 825, a law that allows a patient who has an abortion to sue her provider for up to ten years following the abortion, and provides that “[a]ny person who performs an abortion is liable to the mother of the unborn child for any damage occasioned or precipitated by the abortion.” The law also defines “damage” to include any “injury to the unborn child.” Under the law, a woman who has a safe and legal abortion but years later undergoes a religious conversion and believes abortion is murder could file a lawsuit, claiming at the time of the procedure she didn’t realize that she was “killing a child,” even if she signed the informed consent form that explained the medical facts and risks associated with the procedure. The law allows her to sue on behalf of herself and her fetus, a provision that ushers in fetal “personhood” rights in a less
Importantly, the law excludes medical malpractice laws from applying in the case of abortion. This transforms abortion from a procedure like all other medical procedures judged on negligence standards, which measures a provider’s conduct based on standards of care in the industry and reasonableness, into a strict liability practice. That means if something goes wrong, the doctor is liable for the damages that result, regardless if they used every precaution and took every conceivable measure of care. The law then goes one step further and excludes providers from the benefit of Louisiana’s state fund to pay medical malpractice awards.
The law was challenged by a group of six clinics and three physicians who attacked the law straight on, arguing it was unconstitutionally vague and imposed an undue burden on a woman’s right to abortion by threatening to eliminate access and making it too expensive for doctors to perform the procedure. They also argued that it violated the equal protection clause of the Fourteenth Amendment because it treats abortion providers differently than all other health-care providers. U.S. District Judge Helen “Ginger” Barrigan, a Clinton appointee, agreed and blocked the law.
But on Wednesday, a three-judge panel of the Fifth Circuit reversed the district court outright, ruling not only that the abortion clinics and physicians did not have standing to sue to challenge the law, but that the law was not an undue burden on the right to choose even if it made abortion unavailable in the state. That’s right: A law that exposes clinics and doctors to damages for malpractice claims while simultaneously denying them access to the state-run malpractice insurance fund cannot be challenged by those it governs, nor is a law that drives providers out of the state burdensome on a person’s right to choose abortion. How is this possible? Consider it a constitutional run-around.
In suing to challenge the Louisiana law, the providers and clinics effectively asked the court to block the provision that allows for strict liability claims against abortion providers. But, according to the Fifth Circuit, that is just not possible. That’s because the Louisiana agency that monitors and regulates the malpractice regime and compensation fund is not charged with enforcing this “strict liability” provision. The agency simply decides if a claim is covered or not, meaning there’s no way for the court to block enforcement of this provision, since it has nothing to do with administering the fund. According to the Fifth Circuit, there’s nothing anyone can do to challenge this provision absent re-writing the law so that abortion is once again governed by traditional medical malpractice standards of negligence.
If it sounds confusing, that’s because it is, and intentionally so. The law is designed to evade judicial review of laws that are the effect of an outright ban on constitutionally protected conduct, and it does so through the manipulation of the doctrine of standing. Put another way, under the Louisiana law only those providers already subject to a malpractice claim for damages can then sue to challenge the law’s provisions. In the meantime, those who are unwilling or unable to continue to provide abortions under the cloud of potential bankruptcy and other penalties following one lawsuit will stop providing abortions, despite the fact they have a constitutional right to do so. Now, place these kind of strict liability for abortion bills alongside targeted regulation of abortion providers (TRAP) measures closing clinics at a rapid pace across the country, and the larger threat to access becomes crystal clear: Clinics that have managed to survive in spite of TRAP now face catastrophic financial risk for simply staying open. The law acts as a ban on constitutionally protected conduct without taking that constitutionally protected conduct on directly.
Furthermore, the Fifth Circuit held medical providers are not singled out in this law, only the procedure is, meaning that providers can freely choose to continue to offer abortion services. They just face a different financial risk, and that, according to the Fifth Circuit, is constitutionally
But if a law drives abortion providers out of the state, then the next logical argument is that it unduly burdens abortion rights. After all, a law designed to make it too expensive to perform abortions in the state creates the problem of providers leaving or refusing to perform the procedure. Not so, according to the Fifth Circuit. Providers may have a difficult time getting insurance to cover abortion procedures and may decide to stop offering them, the court reasoned, but women still have the choice to seek an abortion. “While government may not place obstacles in the path of a woman’s exercise of her freedom of choice,” the ruling says, “it need not remove those obstacles, like Louisiana’s dearth of affordable insurance, that are ‘not of [the government's] own creation.’” It’s a stunning display of judicial cognitive dissonance that sadly has become routine from
the Fifth Circuit. This is the same court that upheld Texas’ forced ultrasound law on the rationale that the restriction actually empowered patients, not limited abortion access.
The providers could ask for the full panel of the Fifth Circuit to reconsider the decision, or they could seek Supreme Court review. Neither option is particularly appealing given the very conservative bend of the Fifth Circuit and the Roberts Court’s willingness to give its blessing to whatever restrictions on choice may come before it.
While the decision did not address the issue of limiting access to abortion by closing clinics directly, it sends clear signals that at least one federal appellate court is willing to find that a lack of providers in a state, even when driven out by anti-abortion regulations, is not a threat to a woman’s fundamental right to choose.