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Does pending abortion bill prevent prosecution of the procedure's patients? Opponents say no

17ABORTION Photo Jackson.JPG
Alex Tirado
/
Manship School News Service
Sen. Katrina Jackson (D-Monroe) presents her legislation to criminalize abortion providers to the House Health and Welfare Committee. May 17, 2022.

Less than a week after Louisiana lawmakers rejected legislation that would explicitly allow people who end their pregnancies to be charged with murder, a state House committee advanced a separate abortion criminalization bill that abortion rights advocates say could lead to the same outcome.

On Tuesday, the House Health and Welfare Committee advanced SB342, a bill that would overhaul the state’s 2006 “trigger law” that would automatically ban nearly all abortions in Louisiana if Roe v. Wade is overturned, and stiffen criminal penalties for abortion providers.

The far-reaching legislation spans civil and criminal statutes and, among abortion rights advocates, has raised many of the same concerns as HB813, the controversial abortion-as-murder legislation that drew national attention before it died on the House floor last week.

The language in Jackson’s bill — and the 2006 trigger law it amends — defines personhood as beginning at the moment of fertilization. “Moment of fertilization” language is common in abortion trigger laws across the country.

Sen. Katrina Jackson’s (D-Monroe) bill would provide for prison sentences of one to 10 years and fines ranging from $10,000 to $100,000 for abortions providers who perform the procedure on someone less than 15 weeks into a pregnancy. Those penalties would escalate to up to 15 years and fines up to $200,000 for abortions performed after 15 weeks.

Existing state law allows for prison terms of one to five years and fines of $5,000 to $50,000 for abortion providers. But Ben Clapper of Louisiana Right to Life, the state’s most established anti-abortion group, said an earlier court ruling could block those criminal penalties if Roe v. Wade is overturned and the trigger law takes effect.

Jackson’s bill explicitly excludes women from those criminal penalties.

But Gwyneth O’Neill, an attorney and abortion rights advocate, said that exception would only apply to the specific offense of criminal abortion outlined in the bill. However, the legislation’s expanded definition of personhood would cut across all Louisiana law, and would theoretically entitle a fertilized egg to all of the legal protections of the state’s criminal code.

“There is already grave risk of prosecution under current law, and the language of SB342 will only make it easier because it expands who may be a victim under Louisiana law,” O’Neill said. “If you’re being truthful when you say that it’s not the intention of these bills to throw pregnant women into jail, then the only way to do that is to create a clear, unequivocal affirmative exception that exempts pregnant women from criminal prosecution across all criminal statutes for any pregnancy outcome.”

Last month, the House Health and Welfare Committee considered, and rejected, a bill by Rep. Mandie Landry (D-New Orleans) that would have done just that.

Melissa Flournoy, head of the Louisiana Coalition for Progress, opposed Jackson’s bill, saying its language excluding women from prosecution was lip service to a public that does not want to see people punished for ending their pregnancies.

“I’m concerned today that if we say ‘oh no, we’re not going to criminalize women because we’ve all read the polls and we don’t want to lose voters,’ there are still prosecutors who can charge women with self-induced abortion using a variety of other laws, including manslaughter, fetal homicide and homicide by child abuse,” Flournoy said. “

Jackson made significant changes to her bill in committee that would ban local governments from making any laws authorizing or regulating abortion.

She also added language to the state’s trigger law that would permit abortions in the case of severe fetal abnormalities that would make it impossible for the child to sustain life after birth. But the proposed law would require two qualified physicians to confirm the diagnosis and that the procedure be performed in a licensed surgical center or hospital, raising concerns about the amount of time it may take a pregnant person to obtain the abortion.

The bill cleared committee on a 10-2 vote. It now heads to the full House of Representatives for consideration.

The committee also advanced Sen. Sharon Hewitt’s (R-Slidell) SB388 which stiffens penalties for the remote prescription of abortion-inducing drugs, which was outlawed in the state with legislation passed in 2020.

“This bill makes it clear that the dangerous action of providing or mailing abortion pills without an in-person physician visit is illegal and unacceptable in Louisiana,” Hewitt said.

The bill cleared the committee on a 9-2 vote.

According to data from the Guttmacher Institute, which supports abortion rights, more than half of all abortions performed in the United States are done so with medication. Even under the direct supervision of a physician, the first dose of the two drug regimine is typically administered in a clinical setting and the second is given to the person seeking the abortion to take at home.

Dr. Nicole Freehil, an obstetrician-gynecologist practicing in New Orleans, said the changes greatly limit patients access to safe and effective medical care and places an undue burden on pregnant people to visit a physician in person with no clear medical benefit.

“There is overwhelming evidence that medication abortion is safe and effective,” Freehill said. “There are many studies showing serious complications under 1%.”

Both Jackson and Hewitt’s bills have won the approval of the Senate and are headed to the full House of Representatives. The House’s Republican majority has already indicated its approval of Jackson’s bill during debate on other abortion restrictions earlier this session.