Analysis Law and Policy

Fifth Circuit Rejects Challenge to Law Excluding Abortion Providers From Malpractice Protections

Jessica Mason Pieklo

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.

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.

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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 obvious fashion.

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 A-OK.

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.

Roundups Law and Policy

Gavel Drop: The Fight Over Voter ID Laws Heats Up in the Courts

Jessica Mason Pieklo & Imani Gandy

Texas and North Carolina both have cases that could bring the constitutionality of Voter ID laws back before the U.S. Supreme Court as soon as this term.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts

Texas Attorney General Ken Paxton intends to ask the U.S. Supreme Court to reinstate the state’s voter ID law.

Meanwhile, according to Politifact, North Carolina attorney general and gubernatorial challenger Roy Cooper is actually saving taxpayers money by refusing to appeal the Fourth Circuit’s ruling on the state’s voter ID law, so Gov. Pat McCrory (R) should stop complaining about it.

And in other North Carolina news, Ian Millhiser writes that the state has hired high-powered conservative attorney Paul Clement to defend its indefensible voter ID law.

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Alex Thompson writes in Vice that the Zika virus is about to hit states with the most restrictive abortion laws in the United States, including Alabama, Louisiana, Mississippi, and Texas. So if you’re pregnant, stay away. No one has yet offered advice for those pregnant people who can’t leave Zika-prone areas.

Robin Marty writes on Care2 about Americans United for Life’s (AUL) latest Mad Lib-style model bill, the “National Abortion Data Reporting Law.” Attacking abortion rights: It’s what AUL does.

The Washington Post profiled Cecile Richards, president of the Planned Parenthood Federation of America. Given this Congress, that will likely spur another round of hearings. (It did get a response from Richards herself.)

Kimberly Strawbridge Robinson writes in Bloomberg BNA that Stanford Law Professor Pamela Karlan thinks the Supreme Court’s clarification of the undue burden standard in Whole Woman’s Health v. Hellerstedt will have ramifications for voting rights cases.

This must-read New York Times piece reminds us that we still have a long way to go in accommodating breastfeeding parents on the job.

Culture & Conversation Media

Filmmaker Tracy Droz Tragos Centers Abortion Stories in New Documentary

Renee Bracey Sherman

The film arrives at a time when personal stories are center stage in the national conversation about abortion, including in the most recent Supreme Court decision, and rightly so. The people who actually have and provide abortions should be driving the narrative, not misinformation and political rhetoric.

This piece is published in collaboration with Echoing Ida, a Forward Together project.

A new film by producer and director Tracy Droz Tragos, Abortion: Stories Women Tell, profiles several Missouri residents who are forced to drive across the Mississippi River into Illinois for abortion care.

The 93-minute film features interviews with over 20 women who have had or are having abortions, most of whom are Missouri residents traveling to the Hope Clinic in Granite City, Illinois, which is located about 15 minutes from downtown St. Louis.

Like Mississippi, North Dakota, South Dakota, and Wyoming, Missouri has only one abortion clinic in the entire state.

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The women share their experiences, painting a more nuanced picture that shows why one in three women of reproductive age often seek abortion care in the United States.

The film arrives at a time when personal stories are center stage in the national conversation about abortion, including in the most recent U.S. Supreme Court decision, and rightly so. The people who actually have and provide abortions should be driving the narrative, not misinformation and political rhetoric. But while I commend recent efforts by filmmakers like Droz Tragos and others to center abortion stories in their projects, these creators still have far to go when it comes to presenting a truly diverse cadre of storytellers if they really want to shift the conversation around abortion and break down reproductive stigma.

In the wake of Texas’ omnibus anti-abortion law, which was at the heart of the Whole Woman’s Health v. Hellerstedt Supreme Court case, Droz Tragos, a Missouri native, said in a press statement she felt compelled to document how her home state has been eroding access to reproductive health care. In total, Droz Tragos interviewed 81 people with a spectrum of experiences to show viewers a fuller picture of the barriersincluding legislation and stigmathat affect people seeking abortion care.

Similar to HBO documentaries about abortion that have come before it—including 12th & Delaware and Abortion: Desperate ChoicesAbortion: Stories Women Tell involves short interviews with women who are having and have had abortions, conversations with the staff of the Hope Clinic about why they do the work they do, interviews with local anti-choice organizers, and footage of anti-choice protesters shouting at patients, along with beautiful shots of the Midwest landscape and the Mississippi River as patients make road trips to appointments. There are scenes of clinic escorts holding their ground as anti-choice protesters yell Bible passages and obscenities at them. One older clinic escort carries a copy of Living in the Crosshairs as a protester follows her to her car, shouting. The escort later shares her abortion story.

One of the main storytellers, Amie, is a white 30-year-old divorced mother of two living in Boonville, Missouri. She travels over 100 miles each way to the Hope Clinic, and the film chronicles her experience in getting an abortion and follow-up care. Almost two-thirds of people seeking abortions, like Amie, are already a parent. Amie says that the economic challenges of raising her other children make continuing the pregnancy nearly impossible. She describes being physically unable to carry a baby and work her 70 to 90 hours a week. Like many of the storytellers in the film, Amie talks about the internalized stigma she’s feeling, the lack of support she has from loved ones, and the fear of family members finding out. She’s resilient and determined; a powerful voice.

The film also follows Kathy, an anti-choice activist from Bloomfield, Missouri, who says she was “almost aborted,” and that she found her calling in the anti-choice movement when she noticed “Anne” in the middle of the name “Planned Parenthood.” Anne is Kathy’s middle name.

“OK Lord, are you telling me that I need to get in the middle of this?” she recalls thinking.

The filmmakers interview the staff of the Hope Clinic, including Dr. Erin King, a pregnant abortion provider who moved from Chicago to Granite City to provide care and who deals with the all-too-common protesting of her home and workplace. They speak to Barb, a talkative nurse who had an abortion 40 years earlier because her nursing school wouldn’t have let her finish her degree while she was pregnant. And Chi Chi, a security guard at the Hope Clinic who is shown talking back to the protesters judging patients as they walk into the clinic, also shares her abortion story later in the film. These stories remind us that people who have abortions are on the frontlines of this work, fighting to defend access to care.

To address the full spectrum of pregnancy experiences, the film also features the stories of a few who, for various reasons, placed their children for adoption or continued to parent. While the filmmakers interview Alexis, a pregnant Black high school student whose mother died when she was 8 years old, classmates can be heard in the distance tormenting her, asking if she’s on the MTV reality show 16 and Pregnant. She’s visibly distraught and crying, illustrating the “damned if you do, damned if you don’t” conundrum women of color experiencing unintended pregnancy often face.

Te’Aundra, another young Black woman, shares her story of becoming pregnant just as she received a college basketball scholarship. She was forced to turn down the scholarship and sought an adoption, but the adoption agency refused to help her since the child’s father wouldn’t agree to it. She says she would have had an abortion if she could start over again.

While anti-choice rhetoric has conflated adoption as the automatic abortion alternative, research has shown that most seeking adoption are personally debating between adoption and parenting. This is illustrated in Janet’s story, a woman with a drug addiction who was raising one child with her partner, but wasn’t able to raise a second, so she sought an adoption. These stories are examples of the many societal systems failing those who choose adoption or students raising families, in addition to those fighting barriers to abortion access.

At times, the film feels repetitive and disjointed, but the stories are powerful. The range of experiences and reasons for having an abortion (or seeking adoption) bring to life the data points too often ignored by politicians and the media: everything from economic instability and fetal health, to domestic violence and desire to finish an education. The majority of abortion stories featured were shared by those who already had children. Their stories had a recurring theme of loneliness and lack of support from their loved ones and friends at a time when they needed it. Research has shown that 66 percent of people who have abortions tend to only tell 1.24 people about their experience, leaving them keeping a secret for fear of judgment and shame.

While many cite financial issues when paying for abortions or as the reason for not continuing the pregnancy, the film doesn’t go in depth about how the patients come to pay for their abortions—which is something my employer, the National Network for Abortion Funds (NNAF), directly addresses—or the systemic issues that created their financial situations.

However, it brings to light the hypocrisy of our nation, where the invisible hand of our society’s lack of respect for pregnant people and working parents can force people to make pregnancy decisions based on economic situations rather than a desire to be pregnant or parent.

“I’m not just doing this for me” is a common phrase when citing having an abortion for existing or future children.

Overall, the film is moving simply because abortion stories are moving, especially for audiences who don’t have the opportunity to have someone share their abortion story with them personally. I have been sharing my abortion story for five years and hearing someone share their story with me always feels like a gift. I heard parts of my own story in those shared; however, I felt underrepresented in this film that took place partly in my home state of Illinois. While people of color are present in the film in different capacities, a racial analysis around the issues covered in the film is non-existent.

Race is a huge factor when it comes to access to contraception and reproductive health care; over 60 percent of people who have abortions are people of color. Yet, it took 40 minutes for a person of color to share an abortion story. It seemed that five people of color’s abortion stories were shown out of the over 20 stories, but without actual demographic data, I cannot confirm how all the film’s storytellers identify racially. (HBO was not able to provide the demographic data of the storytellers featured in the film by press time.)

It’s true that racism mixed with sexism and abortion stigma make it more difficult for people of color to speak openly about their abortion stories, but continued lack of visual representation perpetuates that cycle. At a time when abortion storytellers themselves, like those of NNAF’s We Testify program, are trying to make more visible a multitude of identities based on race, sexuality, immigration status, ability, and economic status, it’s difficult to give a ringing endorsement of a film that minimizes our stories and relegates us to the second half of a film, or in the cases of some of these identities, nowhere at all. When will we become the central characters that reality and data show that we are?

In July, at the progressive conference Netroots Nation, the film was screened followed by an all-white panel discussion. I remember feeling frustrated at the time, both because of the lack of people of color on the panel and because I had planned on seeing the film before learning about a march led by activists from Hands Up United and the Organization for Black Struggle. There was a moment in which I felt like I had to choose between my Blackness and my abortion experience. I chose my Black womanhood and marched with local activists, who under the Black Lives Matter banner have centered intersectionality. My hope is that soon I won’t have to make these decisions in the fight for abortion rights; a fight where people of color are the backbone whether we’re featured prominently in films or not.

The film highlights the violent rhetoric anti-choice protesters use to demean those seeking abortions, but doesn’t dissect the deeply racist and abhorrent comments, often hurled at patients of color by older white protesters. These racist and sexist comments are what fuel much of the stigma that allows discriminatory laws, such as those banning so-called race- and sex-selective abortions, to flourish.

As I finished the documentary, I remembered a quote Chelsea, a white Christian woman who chose an abortion when her baby’s skull stopped developing above the eyes, said: “Knowing you’re not alone is the most important thing.”

In her case, her pastor supported her and her husband’s decision and prayed over them at the church. She seemed at peace with her decision to seek abortion because she had the support system she desired. Perhaps upon seeing the film, some will realize that all pregnancy decisions can be quite isolating and lonely, and we should show each other a bit more compassion when making them.

My hope is that the film reaches others who’ve had abortions and reminds them that they aren’t alone, whether they see themselves truly represented or not. That we who choose abortion are normal, loved, and supported. And that’s the main point of the film, isn’t it?

Abortion: Stories Women Tell is available in theaters in select cities and will be available on HBO in 2017.

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