Laws and Cases to Know:

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LOUISIANA ABORTION STATUTES
 

LA RS 40: 1061 Human Life Protection Act (Amended by 2022 Senate Bill 342)

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• Louisiana's "trigger ban" currently in effect

• Outlines the state's authority to prohibit abortion in the event of Roe's reversal

  • "A decision of the Supreme Court of the United States in the case of Dobbs v. Jackson Women's Health Organization, Docket No. 19-1392, which overrules, in whole or in part, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed. 2d 147 (1973), thereby restoring to the state of Louisiana the authority to prohibit or limit abortion." (RS 40:1061 ss. 3)

• Outlines exceptions:

  • "Except in the case of a medical emergency or when a pregnancy is diagnosed as medically futile, no abortion shall be performed or induced or be attempted to be performed or induced unless the physician performing or inducing it has first made a determination of the probable post fertilization age of the unborn child or relied upon such a determination made by another physician. In making such a determination, the physician shall make such inquiries of the woman and perform or cause to be performed such medical examinations and tests as a reasonably prudent physician, knowledgeable about the case and the medical conditions involved, would consider necessary to perform in making an accurate diagnosis with respect to post fertilization age." (RS 1061.1 (1))

    • ​Determination of legality made by physician in every instance

    • No exceptions for rape, incest​

    • Medical emergency = physical condition (not emotional/psychological) that will cause death or severe injury to the mother (RS 87.1 (18))

    • Medically futile = a fetus that will not live long after birth due to an unfixable medical defect (RS 87.1 (19))
       

LA RS 14:87  Abortion as a crime for physicians; provisions and definitions

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• The violation of the provisions set in 40:1061 allows for prosecution of physician performing abortion

• Defines performing an abortion as a crime unless it occurs:

  • "...in order to preserve the life or health of the unborn child or to remove a stillborn child"​ (RS 14:87 ss. B (1))

  • "... for the express purpose of saving the life, preventing the permanent impairment of a life sustaining organ or organs, or to prevent a substantial risk of death of the mother" (RS 14:87 ss. B (2))

  • "...by performing a medical procedure necessary in reasonable medical judgment to prevent the death or substantial risk of death due to a physical condition, or to prevent the serious, permanent impairment of a life sustaining organ of a pregnant woman" (RS 14:87 ss. B (3))

    • Reasonable Medical Judgment: "a physician's use of reasonable care and diligence,
      along with his best judgment, in the application of his skill." (RS 14:87.1 (14)) ​

    • Serious health risk to the unborn child's mother: "means that in reasonable medical judgment the mother has a condition that so complicates her medical condition that it necessitates the abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions." (RS 87.1 (26))

• Roe originally allowed for lawful abortion until fifteen weeks pregnant, but this changed when the overturn triggered the state's definitions to be the governing law​

  • ​ "Unborn child" means any individual of the human species from fertilization and implantation until birth." (RS 14:2 (11))

  • Late term abortion is now considered > 15 weeks

• Included in the 2016, 2018, 2020, and 2022 Unconstitutional Statutes Biennial Report to the Legislature from Louisiana State Law Institute Constitutional Laws Committee

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LA RS 40: 1061.29 Penalties

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• Penalties for those performing abortions

  • Basis for malpractice suit and professional disciplinary action

  • Fine of $1000.00 or less, 2 years maximum imprisonment, or both

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CASE LAW
 

• Roe v. Wade (1973) 410 U.S. 113

  • ​The Supreme Court holds that the Constitution (14th amendment) protects a woman’s right to an abortion via the right to personal privacy

  • Issues: personal privacy, fundamental rights, bodily integrity

  • "The right of the individual married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy. Certainly the interests of a woman in giving of her physical and emotional self during pregnancy and the interests that will be affected throughout her life by the birth and raising of a child are of a far greater degree of significance and personal intimacy than the right to send a child to private school (protected in Pierce v. Society of Sisters, 1925), or the right to teach a foreign language (protected in Meyer v. Nebraska, 1923)."

• Planned Parenthood of Southeastern Pa. v. Casey (1992) 505 U.S. 833

  • ​The Supreme Court holds that restrictions on abortion are unconstitutional if they place an “undue burden” on the woman

  • Enacts requirements of informed consent and minors' parental consent

  • "State restrictions on abortion violate a woman's right of privacy in two ways. First, compelled continuation of a pregnancy infringes upon a woman's right to bodily integrity by imposing substantial physical intrusions and significant risks of physical harm. During pregnancy, women experience dramatic physical changes and a wide range of health consequences. Labor and delivery pose additional health risks and physical demands. Second, because motherhood has a dramatic impact on a woman's educational prospects, employment opportunities, and self-determination, restrictive abortion laws deprive her of basic control over her life." 

• Dobbs v. Jackson Women's Health Organization (2022) 945 F. 3d 265

  • Reverses decisions of both ​Roe and Casey

  • Opinion states that, due to abortion's history as a criminal act, viewing access to abortion as a fundamental right would, theoretically, also give rights to "prostitution or illicit drug use" 

  • Holds that the Constitution gives no express right to abortion, states that it is not a fundamental right and returns authority to states

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CONSTITUTIONAL LAW
 

• 14th Amendment, ss.1: Due Process Clause

  • ​"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

  • Roe v. Wade decision linked Due Process Clause with personal privacy right to bear a child

  • "Person" as stated in the Clause- or those with Constitutional rights to life- was never interpreted to include fetuses until recently

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