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Louisiana Rules Would Have Required 30-Day Waiting Period Before Legal Abortion (UPDATED)

Andrea Grimes

Monday night, a spokesperson for the Louisiana Department of Health and Hospitals told Rewire that it will "be rescinding the language regarding the 30-day period for blood tests," and that it intends to "clarify" the building requirements for abortion facilities.

Update, January 28, 9:00 a.m. Eastern: Monday night, a spokesperson for the Louisiana Department of Health and Hospitals told Rewire that it will “be rescinding the language regarding the 30-day period for blood tests,” and that it intends to “clarify” the building requirements for abortion facilities, saying that “the intent of the language on square footage in the rule is to cover prospective facilities or facilities undergoing renovations.” Despite the department’s passage of the rules without input from providers and without a previous public hearing, DHH says it “has already received several public comments regarding the rule.” A public hearing on the new rules has been moved to February 4 at DHH in Baton Rouge at 1 p.m.

New “emergency” abortion regulations in Louisiana require patients to wait 30 days between blood tests and their abortion procedures, according to the state’s Department of Health and Hospitals (DHH), which has also enacted new physical plant requirements, licensing procedures, and staffing rules that may soon have the effect of shuttering all five of Louisiana’s legal abortion providers.

“If these rules go into effect, the Department of Health and Hospitals will have the ability to start shutting clinics down just based on what the size of the facilities has always been,” said Ellie Schilling, a New Orleans attorney who represents several Louisiana abortion clinics. She discussed the most severe of the new regulations with Rewire in advance of a DHH public hearing on abortion facilities in Baton Rouge on Wednesday.

Schilling says the new regulations appear to mirror legislative actions like those recently taken in Texas, which require abortion providers to make extensive physical plant modifications. Schilling also said Louisiana’s new rules severely limit abortion providers’ access to due process in appealing any citations or violations issued to them by DHH, and make it virtually impossible for abortion facility licensees to maintain licenses in good standing if facility ownership changes, or if facilities move locations. These specific new requirements are not, said Schilling, required by statute.

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“They’re tripling the size of what procedure rooms need to be,” said Schilling. “Nobody else has to comply with this, even general hospitals don’t have requirements like this for procedure rooms, separate recovery rooms.” The rules even dictate what specific kind of flooring materials abortion facilities must use.

Louisiana DHH lists the rules as “effective” as of November 20, 2013, but a Louisiana abortion facility staffer told Rewire that state health officials have not yet officially attempted to enforce the regulations, or cite clinics for failing to build newly required enlarged operating rooms and recovery areas. She also told Rewire that the state failed to seek input from any abortion stakeholders, and drafted the rules without notice to abortion providers.

“None of the abortion care providers in Louisiana were aware of these new regulations until they were published as emergency rules,” said Kathaleen Pittman, an administrator at Hope Medical Group for Women in Shreveport. “We were allowed no input in drafting them.”

The new DHH rules say that “this action is being taken to promote the health and welfare of Louisiana citizens by assuring the health and safety of women seeking health care services at licensed abortion facilities,” but some of the regulations directly contradict best medical practices.

For example, DHH requires patients to have certain blood tests run on hematocrit and hemoglobin levels 30 days before their procedures.

“Not only is this unjust for the women, it is contraindicated from a medical standpoint, in that hematocrits should be as current as possible,” Pittman explained.

In fact, the new DHH regulations could decrease patient safety, putting patients at a higher risk of complications. As pregnancy advances, procedures become more involved and more costly, said Ellie Schilling. And because Louisiana already bans abortion after 20 weeks, a patient who seeks a legal abortion at 16 weeks could be forced either to seek an illegal abortion or to forego the procedure altogether after waiting 30 days for a blood test.

“It’s definitely being done as a back-door abortion ban,” said Schilling. “It’s clearly unconstitutional. It clearly creates an undue burden on access.”

Louisiana DHH has scheduled a public hearing on the new regulations for this Wednesday, January 29, at 9:30 a.m., weather permitting. The New Orleans Abortion Fund has more information on the hearing and how to submit written comments to the department.

A DHH spokesperson said she was not immediately able to respond to Rewire‘s inquiries on Monday.

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