While the battle for reproductive rights is being waged in state legislatures across the country—a number of lawmakers have already proposed 20-week abortion bans this year—a quieter fight is unfolding in the halls of state health departments, where nurse investigators and bureaucrats, often acting without express statutory directives, are pushing for tighter restrictions on already heavily regulated abortion providers.
In Texas last year, one right-wing lawmaker strong-armed the Department of State Health Services into enacting intrusive, Big Brother-style abortion reporting requirements for doctors. This year, the Louisiana Department of Health and Hospitals (DHH) attempted to quietly pass what it called “emergency” abortion provider regulations that would have shuttered every one of the then five existing abortion providers in the state.
Detailing a variety of weedy requirements, the new rules would have, in part, required people seeking legal abortions to endure a 30-day waiting period between a blood test and a procedure, mandated that abortion providers renovate and enlarge their physical facilities, and changed existing dispute procedures in a way that would have given providers little recourse in challenging any alleged violations of the rules.
An 11th-hour public outcry, organized by Louisiana providers and reproductive justice groups, stopped Louisiana DHH from passing the new regulations; on the literal eve of a hearing at which department leaders were set to discuss the rules, DHH struck them from its agenda and officially “rescinded” them, pending further revision.
It is a likely temporary but important victory, giving Louisiana abortion providers some respite from what they say has become a daily nightmare: wondering whether today will be the day when DHH inspectors descend upon their clinics in surprise inspections, intent on finding whatever they can to cite, and then closing legal abortion providers. Abortion clinic administrators told RH Reality Check that alleged citations can range from infractions like not having separate, disaster-specific evacuation plans to not explicitly writing policies that compel doctors to obey already extant mandatory reporting laws about child abuse or coerced abortion.
“We’re waiting on pins and needles,” said Maria Couevas, the owner of a New Orleans OB-GYN clinic that, until January, provided abortion services as part of a comprehensive practice serving low-income patients. Couevas told RH Reality Check that her clinic, Midtown Medical, delivered on average between 30 and 60 babies per month, while about 5 percent of its practice involved safe, legal abortion care.
The clinic is now involved in a legal dispute with Louisiana DHH over alleged regulation violations that occurred in July 2012 concerning the maintenance of personnel and patient records. Those citations came after DHH had already attempted to rescind the clinic’s ability to receive Medicaid reimbursement. While Couevas said she continued to provide care at no cost to her patients for as long as possible, she simply couldn’t keep her doors open after January. Couevas’ lawyer, Ellie Schilling, told RH Reality Check that while Midtown was eventually able to go to court to restore its ability to get Medicaid reimbursements, the state still owes the facility hundreds of thousands of dollars. For now, Midtown Medical’s doors are closed.
Couevas described the last few years as a “constant period of harassment and intimidation,” and not just for her facility. Ever since Republican Gov. Bobby Jindal ousted Democrat Kathleen Blanco from office in 2008, abortion providers say that they have operated under the assumption that DHH inspectors are intent on closing clinic doors, rather than collaborating with facilities to ensure compliance and safety.
“I’m not sure what to think other than they’re doing what they can to shut us all down,” said Kathaleen Pittman, an abortion clinic administrator in Shreveport who says she wants to “concentrate on taking care of [her] patients,” rather than keeping a lawyer on speed-dial. Her clinic, Hope Medical Group for Women, has now resolved a dispute with DHH over citations from the department issued in 2010 for failing to maintain certain policies and procedures concerning the administration of anesthesia and in 2011 for paperwork inconsistencies, unlocked storage of prescription medications and failing to have a “plan for internal and external disasters.”
“It is exhausting not knowing when something else is going to come up that we have to deal with,” said Pittman.
Abortion providers told RH Reality Check that they’ve seen a distinct shift, from having a collaborative and amenable relationship with DHH to an antagonistic one. And it surprises them, because when the state first began regulating abortion clinics in 2004, providers themselves were at the table developing the regulations with DHH officials.
Of the three abortion facilities that have had citation disputes with Louisiana DHH, one provider has been shuttered entirely due to DHH citations. In 2009, the department cited the Gentilly Medical Clinic for Women in New Orleans for failing to have a “sufficient” number of nurses and lacking appropriate site-specific controlled substance licenses. Overall, however, the number of abortion providers in Louisiana is dwindling. The state had seven licensed providers in 2008; with the closure of Midtown Medical this year, it now has just four.
Providers in Louisiana say they greatly value the ability to challenge alleged deficiencies and work with DHH to resolve violations through corrective plans of action, which is one of the reasons why they balked at the recent “emergency” regulations that DHH attempted to pass earlier this year.
“There are major due process problems in terms of appeal rights that have been eliminated or severely restricted,” attorney Ellie Schilling told RH Reality Check before the regulations were rescinded in early January.
Schilling and her clients expect that Louisiana DHH will return to the table with similarly restrictive, though revised, regulations, adding to what has already become increasingly limited access to legal abortion in Louisiana. The state already has a 20-week abortion ban on the books, along with a mandated 24-hour waiting period, following a mandatory ultrasound. Providers are also required to give abortion-seeking Louisianans medically disproven information linking abortion with breast cancer.
The aggregate geographic impact of clinic closures in Louisiana may be devastating in terms of wider abortion access throughout the region; just one abortion provider remains open in Mississippi, and Texas is set to lose all but six of its legal abortion providers this September, when part of its omnibus anti-abortion access law, mandating that abortion providers meet the standards of ambulatory surgical centers, goes into effect.
Targeting clinics through extreme regulations, says Schilling, amounts to a “back-door abortion ban” that comes without the legal conflict of an outright attack on Roe v. Wade.
But Maria Couevas told RH Reality Check that there is a ”silver lining”: Louisiana providers and their supporters, like the New Orleans Abortion Fund and groups like Law Students for Reproductive Justice, have now formed vital connections that keep them in constant contact over regulations that might have been sneaked by in years past. That allows them to turn the spotlight on anti-choice regulations, just as they did in early February when DHH decided to rescind the “emergency” regulations.
“People really saw what [DHH's] motivation was,” said Couevas. “That’s been helpful and it was very inspiring to us.”