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Louisiana health department declines to answer doctors’ questions on abortion law

Ochsner Baptist Medical Center. March 25, 2020.
Patrick Madden
Ochsner Baptist Medical Center. March 25, 2020.

The Louisiana Department of Health refuses to answer questions from doctors about the state’s abortion ban, making it difficult for physicians to determine what medical care for pregnant people might put them at risk for criminal charges.

The health department’s lead attorney Stephen Russo said his agency is not responsible for clearing up physician confusion over when pregnancies can still be legally ended. Instead, doctors with questions should reach out to Attorney General Jeff Landry’s office for help, he said.

“If something is considered to be an abortion under that statute, it’s really … more of a criminal nature and really it isn’t something that the [health] department has the authority to police,” Russo told doctors last month at a state health commission meeting. Louisiana Illuminator obtained a recording of the meeting through a third party.

This is the rare issue in which Gov. John Bel Edwards, who oversees the health department, has been willing to defer to Landry, one of Edwards’ chief political rivals. The attorney general and governor both oppose abortion, but Edwards rarely concedes authority to Landry.

The Edwards administration’s reluctance to provide guidance also leaves some physicians in an awkward position.

Several doctors said they don’t feel comfortable contacting Landry’s office for clarification because the Republican attorney general sent a letter to every physician in the state threatening to pursue criminal prosecution if they violated the ban.

“With regard to individual physicians’ comfort reaching out to the AG, I suspect they would not [feel comfortable reaching out to him],” Dr. Joseph Biggio said in an email response last week.

Biggio is the system chair of Women’s Services and Maternal-Fetal Medicine for Ochsner Health, the state’s largest medical provider. He and two other doctors pushed the health department to provide more clarity on the abortion laws last month as members of the Louisiana Commission on Perinatal Care and Prevention of Infant Mortality.

“There is great concern among OB/GYN providers who just want to provide care, who have no desire to be performing termination services,” Biggio said at the commission’s meeting. “There has now been such a level of concern created from the attorney general’s office about the threat to them … criminally and civilly and professionally that many people are not going to provide the care that is needed for patients, whether it’s ectopic pregnancies, miscarriages, ruptured membranes, you know, hemorrhage.”

‘Physicians were threatened’

Biggio’s comments echoed those of the other physicians on the commission: Dr. Perry Scott Barrilleaux, who teaches at the LSU medical school in Shreveport, and Dr. Steve Spedale, who works at Woman’s Hospital in Baton Rouge. Edwards appointed all three doctors to the board.

“We’re just trying to take care of young ladies, and here we are, we’ve gotten lassoed into this,” Barrilleaux said. “That is inhibiting us, or at least contributing to inhibiting us taking care of folks.”

Biggio and Barrilleaux are perinatologists who specialize in handling high-risk pregnancies. Spedale is a neonatologist, who treats newborns with breathing problems, infections and birth defects.

“People have to understand physicians were threatened with going to jail and losing their license by the attorney general’s office. … Are you aware of any[one] at the upper government level of sitting everybody down around the table and trying to work this out so that people can get the correct health care that they deserve?” Spedale asked Russo.

Russo responded that he would reach out to Landry’s office on behalf of the doctors, but a health department spokesperson said last week that no meeting with Landry’s office has been scheduled.

Landry’s office declined to answer questions for this story, citing ongoing litigation over the state’s abortion ban.

Abortion law prior to ban questioned

During the meeting, doctors initially tried to ask Russo, with the health department, some technical questions about treatment in the wake of the state’s new abortion laws.

Biggio wanted to know if he and a patient would have to wait three days to terminate a pregnancy when it is allowed to end under the abortion ban. Prior to overturning of Roe v. Wade in June, a 72-hour waiting period was in place for abortions, and Biggio wasn’t clear if it still applied.

Biggio and Barrilleaux both asked if a person whose pregnancy is affected by one of the conditions that warrants an exception to the abortion ban would still be able to end their pregnancy if the person is in their second or third trimester. Prior to the ban, abortions weren’t allowed several weeks into pregnancy.

Russo told the doctors he couldn’t answer their questions.

“Not to punt it, but to punt it – to be honest with you – that would not be, in my view, in the purview of the [Louisiana health] department,” Russo said.

The health department already deferred to Landry’s office over the high-profile pregnancy of Nancy Davis, a Baton Rouge woman who was denied an abortion at Woman’s Hospital when her fetus was found to have no skull.

The condition afflicting Davis’ fetus, acrania, is fatal and results in stillbirth, miscarriage or a very short life for a newborn. Davis eventually flew to New York City to end her pregnancy.

When Woman’s Hospital was presented with Davis’ case in July, it reached out to the health department for guidance but was told to talk to Landry’s office instead, according to health officials.

“When they voiced questions and concerns regarding criminal prosecution, we reminded them that it is not our purview and suggested they instead reach to the Office of the Attorney General,” said Aly Neel, a spokeswoman for the health department.

It’s not clear if Woman’s Hospital ever talked to the attorney general’s staff about Davis. Neither Landry’s office nor the hospital will comment.

Davis’ case was alluded to several times during the September commission meeting. Spedale said deliberation over Davis’ pregnancy caused his colleagues at Woman’s Hospital a lot of angst. He suggested much of the concern stemmed directly from Landry’s threatening letter to the doctors earlier in the summer.

Will AG answer doctors’ calls?

Spedale also said hospitals and doctors are now spending a lot of time and energy trying to determine when they can terminate pregnancies.

“At some institutions, it’s now turned into a case-by-case review of either ethics committees or special committees formed at the hospital. So the amount of work that is now being put on providers and hospitals” has increased significantly, he said.

In an interview, Dr. Jennifer Avegno, an emergency room physician and director of the New Orleans Health Department, said it is impractical to expect physicians and hospitals to call the attorney general’s office when they encounter a pregnancy crisis.

“They cannot advise on the technical aspects of care because they have zero medical training,” Avegno said. “Is he prepared to staff up to receive a call at 2 a.m. [from a doctor or hospital]? Will anyone be there to take that call?”

Biggio said confusion over Louisiana’s abortion law may also scare away OB/GYN residents from the state.

“As somebody who is very involved in recruiting people to come practice in this state, that is one of the first questions many are starting to ask,” Biggio said at the commission meeting. “Not so much about whether there are abortion restrictions in the state, but more ‘I’ve heard that I’m going to be criminally prosecuted for providing routine OB/GYN care.’”

“So if we don’t get it fixed, our pipeline of physicians, of trying to recruit people to come do residency here, which is our best way to get people to practice here, is going to dry up,” he said.

State Rep. Rhonda Butler, R-Ville Platte, who also sits on the commission, said she shared the doctors’ concerns, even though she voted for the abortion ban.

“I have a lot of doctors in my family, a lot of nurses in my family, a lot of medical people. This was a huge concern of mine that they felt like they were going to go to jail or get criminal cases against them when they are just trying to save a life, not necessarily take one,” Butler said at the meeting.

“We do need to address that, before we lose a lot of good doctors,” she said. “You can’t give good care if you are constantly trying to protect yourself.”

Butler offered to talk to Landry on behalf of the doctors during the meeting but couldn’t be reached for comment for this story.

In interviews and emails last week, Biggio, Barrilleaux and Spedale said their comments reflected their individual opinions and not those of their employers. No major hospital system in the state has released a statement indicating they have encountered challenges with the state’s abortion law.

This story was originally published by the Louisiana Illuminator.