After weeks of uncertainty, the Louisiana Department of Health issued a list of conditions that would render a pregnancy “medically futile” Monday, clearing the way for doctors to perform abortions under one of the few exemptions in the state’s near-absolute ban on the procedure.
Louisiana’s abortion trigger laws ban abortions from the earliest stages of pregnancy, except in cases in which the pregnancy threatens the life of the pregnant person and when a fetus has conditions that are incompatible with sustaining life after birth.
The list of conditions issued by the Louisiana Department of Health includes several congenital disorders and chromosomal abnormalities. This list also includes a catch-all exception for other “profound and irredeemable” abnormalities incompatible with life, as long as two doctors sign off.
The list of conditions includes:
- achondrogenesis
- anencephaly
- acardia
- body stalk anomaly
- campomelic dysplasia
- craniorachischisis
- dysencephalia splanchnocystica (Meckel-Gruber syndrome)
- ectopia cordis
- exencephaly
- gestational trophoblastic neoplasia
- holoprosencephaly
- hydrops fetalis
- iniencephaly
- perinatal hypophosphatasia
- osteogenesis imperfecta (type 2)
- renal agenesis (bilateral)
- short rib polydactyly syndrome
- sirenomelia
- thanatophoric dysplasia
- triploidy
- trisomy 13
- trisomy 16 (full)
- trisomy 18
- trisomy 22
- A profound and irremediable congenital or chromosomal anomaly existing in the unborn child that is incompatible with sustaining life after birth in reasonable medical judgment as certified by two physicians that are licensed to practice in the State of Louisiana.
The list of conditions was required by the state’s abortion “trigger law” that state lawmakers overhauled this year in the weeks before the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization ended the constitutional right to an abortion. Gov. John Bel Edwards signed the law just days before the landmark Supreme Court ruling, but a series of judicial orders stemming from a lawsuit challenging the constitutionality of the law blocked and reinstated the ban several times.
In late June, the Shreveport abortion clinic Hope Medical Group for Women, a New Orleans physician and an organization of medical students sued the state, saying the trigger law made it impossible to determine when an abortion could be provided to end life-threatening or medically futile pregnancies. Doctors, who would face prison sentences of up to 15 years and fines up to $200,000 for running afoul of the law, said in sworn affidavits that the uncertainty around the exceptions hampered their ability to provide appropriate care for their patients in sometimes dangerous situations.
Plaintiffs' attorneys argued during the case that without an official list in place, doctors would be unable to legally abort medically futile pregnancies without risking prison time.
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After several rulings from state district court judges siding with the plaintiffs in the case, the Louisiana First Circuit Court of Appeals ruled Friday that the ban should stay in effect while the legal battle plays out.
Louisiana lawmakers added the exception for “medically futile” pregnancies in their reworked abortion ban earlier this year, despite early objections from the influential anti-abortion rights group Louisiana Right to Life.
Angie Thomas, associate director for Louisiana Right to Life, expressed her disappointment that the department included so many conditions on its list.
“I’ve seen it, and it's way more than I thought it would be,” Thomas said of the 25-item list. “Our medical team landed on, max, three types of conditions that would truly be incompatible with life.”
Thomas’ comments are consistent with those made by representatives of the group who argued during the legislative session that all pregnancies should run their course as long as they did not endanger the life of the mother or risk permanent damage to their life-sustaining organs.
“It is a shame that doctors are suggesting that they need to terminate the life of the child when they are already going to pass away,” Thomas said. “So you have to understand that the grieving process needs to happen, and it's helpful for it to happen naturally so you don’t have a part in killing that unborn child that is sick.”
The department issued the list of conditions through its emergency rulemaking process, citing the “imminent peril” to public health and safety that would ensue if the list was not in place.
Using the emergency rule process allowed the department to bypass the lengthy public comment period and consultation with state lawmakers required during the regular rule-making process, which typically takes three months to complete. Without the implementation of a permanent rule, the emergency rule would expire in six months.
WWNO Public Health Reporter Rosemary Westwood contributed to this report.
