By james art Health workers and lawyers filed the lawsuit Thursday v. State of Louisiana, on behalf of themselves and their patients, challenging Act 246, a new state law reclassifying mifepristone and misoprostol as controlled dangerous substances.
The lawsuit was filed in the 19th Judicial District Court in East Baton Rouge Parish against the state of Louisiana, Attorney General Liz Merrill, the state board of pharmacy and the state board of medical examiners. The plaintiffs include perinatal organization Birthmark Doulas, family physician Dr. Emily Holt, pharmacist Kaylee Self, and reproductive health advocates Nancy Davis and Caitlin Joshua, who were both denied pregnancy care in the state.
“This case is about the unconstitutional regulation of drugs that people need for reasons unrelated to abortion, simply because those drugs can also be used for abortion,” the lawsuit says.
This is the first lawsuit filed in response to the controversial law, which went into effect on October 1. It targets mifepristone and misoprostol because both can be used for medical abortion, although each has numerous other uses. In addition, on-demand abortions are outlawed in the state and will be outlawed starting in the summer of 2022.
“We want this law overturned because it violates the Louisiana Constitution in two different ways,” said Ellie Schilling, one of the attorneys representing the plaintiffs, along with attorneys from Lift Louisiana and the Lawyering Project, both reproductive rights organizations.
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Merrill said she has not yet seen the case, “but I am confident that this law is constitutional,” she said in a text message relayed through a spokesman. “We will defend it vigorously.”
Schilling said her team argued the law violated the state constitution’s equal protection clause by discriminating against people based on physical condition. People who need mifepristone and misoprostol — and those who order, prescribe and fill the drugs — are treated differently than people with similar medical conditions who need treatment with drugs with the same low-risk profile, she explained.
“In some cases, this discrimination is life-threatening,” the lawsuit says.
Schilling said that because the drugs do not have the potential to cause addiction and dependence, there is no justification for listing them as Schedule IV drugs under the new law.
The plaintiffs’ second argument is that the process for approving the law was inconsistent with the Louisiana Constitution because the drugs were reclassified by an amendment to a forced abortion bill. Article III of the constitution forbids any change in a bill that is not “German” from its original version.
“The original intent of the legislation was to create a crime of forced abortion,” Schilling said, “which is to criminalize people providing an abortion drug to someone else without their knowledge for the illegal purpose of causing an abortion without their consent. But the amendment regulates these drugs when [they] are prescribed and used for a perfectly valid legal purpose unrelated to abortion.
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The changes were “extremely problematic” because they were added late in the process without any proper vetting to consider the law’s potential impacts, Schilling said. The amendments were added to the bill by state Sen. Thomas Pressley, R-Shreveport, during a House Criminal Justice Committee hearing after it passed the Senate.
“Once introduced, the amendment was passed by the committee within minutes and without any opportunity for the public or medical experts to evaluate the appropriateness of such a drastic change to the bill or the Uniform Controlled Hazardous Substances Act,” the suit says.
Pressly declined to comment for this report.
The amendments sparked outrage in Louisiana’s medical community, with nearly 300 doctors signing a letter opposing the measure. The bill was signed into law by Gov. Jeff Landry in May and became Act 246.
Its impact is already being felt across the country. Hospitals have changed their protocol on how they handle the drugs now that they are controlled substances.
Misoprostol, which is often used to stop or prevent bleeding after childbirth, has been they pulled out obstetrics carts for hemorrhages and are stored outside the delivery rooms in password protected locked wards like doctors they are training to determine the timing of what delays mean for bleeding patients. Outpatient reproductive care procedures were also affected, as patients reported having difficult time to fill prescriptions and local pharmacies change whether they dispense the drug at all.
“Act 246 harms patients who need misoprostol or mifepristone to treat their physical conditions, as well as healthcare professionals who strive to provide timely, appropriate, and compassionate care,” the lawsuit says.
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In the lawsuit, the plaintiffs argued that postpartum hemorrhage is “as severe and dangerous as a gunshot wound,” but that drugs such as epinephrine and lidocaine are readily available to treat gunshot wounds and are not labeled as controlled dangerous substances.
The Birthmark Doula Collective is a newer opponent of the law. The New Orleans-based organization offers its services during pregnancy, birth and postpartum, with a focus on marginalized communities. Louisiana ranks among the worst states for maternal mortality and morbidity, with black women disproportionately at risk of dying from complications in childbirth.
Although doulas cannot prescribe or administer misoprostol to their clients, the lawsuit states that Birthmark is concerned that Act 246 will harm the quality of care for their clients. They are also concerned about how delaying access to misoprostol will increase “trauma and the risk of postpartum haemorrhage
“Birthmark’s customers are prevented from asserting their own rights because patients, for example, cannot go to court to challenge a law while they are bleeding,” the lawsuit says.
Nancy Davis and Caitlin Joshua became reproductive health advocates after being denied pregnancy care under Louisiana’s abortion ban.
After her fetus was diagnosed as developing without a skull, Davis said she was denied care in Louisiana and had to travel to New York for an abortion.
When Joshua went to the emergency rooms of two Baton Rouge-area hospitals bleeding from a miscarriage, she said she was denied care. Joshua shared his story on stage at the Democratic National Convention in August, and he and Davis traveled the country telling their story during Vice President Kamala Harris’ presidential campaign.
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Dr. Emily Holt, a New Orleans family physician, is suing for herself and her patients. She recently opened her own clinic and planned to dispense misoprostol and mifepristone locally, but does not have a controlled substance license.
In the lawsuit, Holt argued that “it would likely be costly and administratively burdensome for her small clinic to follow the necessary protocols.”
Kaylee Self, a Shreveport pharmacist involved in the lawsuit, is suing on behalf of her business, her clients and as a pregnant woman. The lawsuit involves her concerns about delays in care if she needs access to misoprostol during pregnancy or childbirth. As a pharmacist, Self argued that Act 246 would force her to spend more of her time dealing with legal requirements and compliance rather than filling prescriptions for patients.
In an interview, Schilling said that because controlled substances are also closely monitored, it could lead to criminal consequences for patients who follow their legal prescription treatment plans. In particular, patients taking misoprostol to prevent ulcers take 100-200 micrograms four times a day, an amount that may flag the patient for further inquiry.
“When dealing with the rise of criminalization, [it often] it falls disproportionately on black and brown people, and Louisiana has a long history of that,” Schilling said.
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This is a developing story that will be updated as the defendants in the case respond.