By james art A group of health care providers and two Louisiana residents who were previously denied pregnancy treatment filed a lawsuit Thursday, suing state officials and seeking to end Act 246, the Louisiana law that reclassified two drugs used in pregnancy. abortion and miscarriage, such as controlled dangerous substances.
The plaintiffs include Nancy Davis, the Baton Rouge woman who was denied an abortion because of a fetus developing without a skull; Caitlin Joshua, the Baton Rouge woman who was turned away by hospitals during a miscarriage; Dr. Emily Holt, a family medicine physician in New Orleans; Kaylee Self, a pharmacist from Shreveport; and Birthmark Doula, owned by a doula co-op in New Orleans.
Attorney General Liz Merrill is named as a defendant, along with the Louisiana Board of Pharmacy and the Louisiana State Board of Medical Examiners. The plaintiffs are represented by The Lawyering Project and Lift Louisiana, two reproductive rights organizations, in the 19th Judicial District Court in East Baton Rouge.
Through a representative, Merrill said he would defend the law.
“I can’t comment on a court case we haven’t seen, but I am confident that this law is constitutional,” she said in a statement. “We will vigorously defend it.”
Supporters of the law, passed in this year’s legislative session, say the restrictions will protect women by keeping them from forced abortions and stopping the flow of abortion drugs into Louisiana by mail.
However, the lawsuit claims the law is unconstitutional, arguing that it discriminates against people who need these drugs for emergencies such as miscarriages or postpartum hemorrhage by making them harder to access.
The plaintiffs argue that this violates the equal protection right of the Louisiana Constitution. They say it’s a “different treatment” compared to what’s provided for bleeding from a gunshot wound, for example, because drugs to treat gunshot wounds are unclassified and therefore easier to access.
Act 246
Act 246 took effect on October 1 and classified the drugs misoprostol and mifepristone as controlled dangerous substances under Schedule IV of the state’s Uniform Controlled Dangerous Substances Act. The two drugs, which are FDA-approved and widely used for various medical purposes, are also used in medical abortions.
The law subjects misoprostol and mifepristone to the same storage requirements for other controlled substances such as Xanax and Valium. Medicines must be stored securely, usually in a locked machine that requires an access code. It also increases the paperwork required to prescribe the drugs, which some doctors say will delay care in emergency situations such as severe bleeding, and creates a list of prescribers and patients.
Sen. Thomas Pressley, R-Monroe, worked with Louisiana Right to Life to draft the bill after his sister’s husband secretly gave her misoprostol in a failed attempt to end her pregnancy.
After passing the Senate, an amendment was added to reclassify mifepristone and misoprostol as controlled dangerous substances, making the final legislation the first of its kind in the US
Under the new law, possession of any of the over-the-counter drugs is punishable by up to five years in prison and a $5,000 fine. Women who are currently pregnant are exempt from sanctions.
Some medical professionals have raised concerns about the scope of the law, with hundreds of doctors signing a letter opposing the legislation and asking for clarity after it was passed.
The state health department released guidelines in September. The memo says the two drugs can be used to treat postpartum hemorrhage and incomplete miscarriages in Louisiana. But medicines must be stored in a locked and secure area, even when on obstetric trolleys. The department told providers to “seek legal advice from their own legal counsel” for further questions.
Murrill said concerns that the restrictions could delay care were “misinformation” in a September statement.
“This legislation does not limit a healthcare provider’s ability to use, prescribe or fill these drugs for legitimate healthcare purposes, nor does it place restrictive burdens on access for emergency purposes,” Merrill said in a previous statement.
Judicial concerns
The lawsuit says Louisiana already has a near-total ban on abortion, making the added classification ineffective at further restricting abortions. Instead, the suit says, it creates barriers for patients experiencing obstetric emergencies or other health conditions that require quick access to misoprostol and mifepristone. Misoprostol, for example, is widely and effectively used to treat postpartum hemorrhage — one of the leading causes of maternal death in Louisiana — and is also on the World Health Organization’s list of essential drugs.
The plaintiffs, including health care providers, argue that these delays affect maternal health, especially in a state with high maternal mortality rates. They also argue that Act 246 increases the logistical and financial burdens on pharmacies and hospitals required to handle these drugs as controlled substances, which can lead to access issues and delays in emergencies.
Initially, the law made only forced abortion illegal and met with little opposition. The reclassification of the two drugs came later after the bill passed the Senate. The plaintiffs questioned the legislative process as violating Louisiana’s single-object rule, which ensures that all parts of a bill have one clear purpose.
The lawsuit also says that Act 246 is a misuse of state resources. Medical organizations, including the American College of Obstetricians and Gynecologists, have criticized the legislation, saying it creates unnecessary health risks and intrudes on medical practice without a legitimate purpose.
The lawsuit seeks a ruling to permanently block the law.