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Admitting Privileges Law on Trial

"The right of personal privacy includes the abortion decision." So said the U.S. Supreme Court in 1973's Roe v. Wade decision. But 42 years later in federal court in Baton Rouge, lawyers working for major policy groups on either side of the issue are arguing about restrictions on that personal private decision.

"I'm a lawyer in private practice in Washington, D.C., who has been retained to represent the Department (DHH) in this case," explains Kyle Duncan, who primarily works with the Bio-Ethics Defense Fund.

His co-counsel is Mike Johnson, who has done extensive work for the Alliance Defense Fund and Right to Life. He's also a frequent Fox News commentator on legal issues. (And yes, he is also Louisiana state Rep. Mike Johnson of Bossier City, the author of this past session's Marriage and Conscience Act.) 

They are representing the state Department of Health and Hospitals and DHH Secretary Kathy Kliebert in a constitutional challenge to 2014's HB 388, the law requiring abortion providers to have hospital admitting privileges.

"It's an important law to protect the health and safety of patients, and also the integrity of the medical profession," Duncan says of HB 388.

"This legislation was engineered by the same groups defending it now," says Ilene Jaroslaw, one of the attorneys for the plaintiffs -- the clinics and their doctors. "It was drafted by these groups and shopped around to lawmakers in receptive states."

Jaroslaw is with the Center for Reproductive Rights.

"These laws place substantial burden on women's right to access abortion. That's what they're intended to do. Make no mistake -- it's their purpose, and it has that effect."

In court Tuesday, a doctor who performs clinical abortions as his primary practice testified about his efforts to get admitting privileges and comply with the law. Binders full of correspondence between the doctor --whose identity was kept hidden due to his fear of anti-abortion reprisals -- and the hospitals were admitted into evidence.

Both sides are dotting every "i" and crossing every "t" because they are focused ahead --to the 5th Circuit Court of Appeals, and ultimately the nation's highest court.

"What we're trying to do is make the most complete factual record that we can. We expect this issue will be before the Supreme Court," Jaroslaw stated. Duncan advised the same.

U.S. District Court Judge John DeGravelles is hearing the case, but both sides say no matter his decision, they'll appeal to the 5th Circuit. One panel for that appeals court has struck down a similar law in Mississippi, while another panel of the 5th Circuit upheld the Texas version of the law, earlier this month. As the 5th Circuit serves Louisiana, Mississippi and Texas, the Louisiana case is being viewed as the tie-breaker.