The Louisiana senate approved a state constitutional amendment on Tuesday declaring that citizens have no constitutional right to abortions. The move is the latest salvo in a broader assault against reproductive rights in the state, and it comes on the heels of extreme legislation in Georgia, Missouri and Alabama all aimed at near-total bans of the procedure.
The measure now heads back to the house, which has already passed a version, for final approval. The amendment still, however, needs to be ratified by Louisiana voters in a referendum this fall.
Critics called the senate’s move “shameful”, noting that it did not make exceptions for victims of rape or incest.
“Constitutions are meant to protect rights, not deny them. But that’s exactly what the state senate did today when it passed an amendment that will directly hurt some of our most vulnerable citizens: poor women,” said Michelle Erenberg, the executive director of Lift Louisiana, an advocacy group that defends women’s access to healthcare.
While the legislation is similar to extreme anti-choice bills that have popped up in statehouses throughout the US in recent months, the party politics present a wrinkle fairly unique to Louisiana. The bill, like several others currently up for consideration, was introduced by a Democrat – the state representative Katrina Jackson. “I’m pro-woman and I’m pro-life because abortions hurt more women than anything else,” she said in front of the state capitol before the proposal passed.
That’s also true of a “fetal heartbeat” bill, in the model of those passed in Georgia and Missouri, which was introduced by the Democratic senator John Milkovich. The bill would ban abortions after cardiac activity is detected in the fetus, which is about six weeks into a pregnancy – before many women are even aware they are pregnant. Milkovich’s bill has already passed in the senate and is likely to receive a vote in the House early next week. Governor John Bel Edwards, a self-described “pro-life” Democrat, has said he intends to sign it when it reaches his desk.
That both bills originate with Democrats is hard to square with national party politics. In 2016, the party approved a platform plank stating: “Every woman should have access to quality reproductive health care services, including safe and legal abortion.”
But that’s not the common wisdom in Louisiana, according to Bel Edwards, who addressed the dissonance on his monthly radio show earlier this month. “I know that for many in the national party, on the national scene, that’s not a good fit. But I will tell you, here in Louisiana, I speak and meet with Democrats who are pro-life every single day,” Edwards said.
Statewide polling suggests a majority of Louisiana residents oppose abortion in “all or most cases”, but only a quarter say the procedure should never be permitted.
Elisabeth Smith, an attorney with the Center for Reproductive Rights, said that, in part because of the cross-party unity on anti-abortion measures, Louisiana is already one of the most restrictive states on abortion. “There are lots of abortion restrictions that are passing in other states that Louisiana has already legislated. In some ways, there are not many more places where the state can go,” Smith said.
This includes a 2006 “trigger law” that would make abortion illegal in the state if Roe v Wade were overturned; five other states have passed similar laws. Jackson’s constitutional amendment is, in a sense, an effort to one-up that measure and provide an additional layer of protection from future legal challenges.
“By enshrining this in the constitution, it makes it just that much more difficult for a future legislature to change the law,” said Ellie Schilling, an attorney who has represented all three of Louisiana’s remaining abortion providers in various legal challenges.
Like the trigger law, Tuesday’s constitutional amendment would require the overturning of Roe v Wade to have any real impact in Louisiana. The state’s fetal “heartbeat” bill, too, conflicts with the landmark 1973 supreme court ruling, and would be immediately subject to extensive legal challenges if and when it passed. For that reason, lawmakers tethered the bill to similar legislation that passed in neighboring state of Mississippi in March. With this strategy, Louisiana can save the cost of fighting off a challenge – estimated to cost upwards of $1m in Mississippi – and simply piggyback off the ruling there.
That law went before the US district judge Carlton Reeves on Tuesday, but even if he strikes the law down, the state of Mississippi will appeal to the very conservative fifth circuit court of appeals, which Erenberg said is “not one that has been willing to really scrutinize abortion restrictions” in recent memory.
Ultimately, the case, or one like it from another state, is probably bound for the supreme court. At least that’s largely what the architects of these plainly unconstitutional bills are hoping for with a firm five-to-four conservative majority now in place on the court. In the meantime, anti-choice lawmakers in Louisiana are still chipping away at reproductive rights through more immediate means, pushing a number of restrictive laws intended to make abortion services more difficult to provide and receive. This includes bills:
requiring medication abortions (those induced by taking a pill, rather than a surgical procedure) to be completed only at abortion clinics
requiring clinics to keep seven years of medical records (and 10 years for minors)
requiring anyone working at an abortion clinic who has contact with patients (including receptionists) to be a mandatory reporter of human trafficking
requiring providers to tell patients, in writing, their physicians’ names, where they completed their residencies, whether they have malpractice insurance, and whether they have been placed on probation in the last decade.
“It’s all just aimed at the strategy of just making it more and more onerous and difficult for abortion providers to provide abortion,” Erenberg said.
She added that even before any of these laws fully take effect, they have a profound impact on women’s access because of the misunderstandings they can create.
The average Louisianan not keeping tabs on the finer points of the legislative process might see the governor signing a bill like the one passed today and reasonably believe that abortions are now illegal.
“There is absolutely a chilling impact on women’s basic understanding about whether or not they still have these rights and still have the ability to access these services,” Erenberg said.