Louisiana issues new emergency rule on abortion ban exceptions

The Louisiana Department of Health issued a new emergency rule late last month that governs a list of medical exceptions to the state’s strict abortion ban. 

It went into effect immediately on Jan. 27 and closely resembles an initial rule on “medically futile” pregnancies from August, though the new one includes one additional medical condition, acrania, that could allow a pregnancy to end. 

In all, there are now 25 medical diagnoses listed in the rule that would permit a person to terminate a pregnancy despite the abortion ban. These conditions result in miscarriage, stillbirth or are otherwise unsurvivable for a baby. A child born with one would be expected to live for only a few weeks at best. 

Acrania – a disorder where a fetus develops without a complete skull – was put on the list after Baton Rouge resident Nancy Davis told reporters she had been denied an abortion in Louisiana for a fetus with that diagnosis. 

As in the previous version, the new rule also includes catch-all language to cover unsurvivable conditions for babies that are not explicitly mentioned. It says a person could end their pregnancy if two physicians determined their fetus is “incompatible with sustaining life after birth.”

The health department released the new version of the emergency rule last week because the previous one on “medically futile” pregnancies was lapsing. State agencies can only put emergency regulations in place for six months at a time.

“The emergency rule expired on Jan. 28 and required a new emergency rule for continuity,” Kevin Litten, a spokesman for the health department, said in a written statement. 

Gov. John Bel Edwards’ administration would not say when a permanent regulation on abortion ban exceptions might go into place, but state agencies are prohibited from repeatedly issuing emergency rules as a substitute for enacting permanent ones.

Last fall, the health department launched the public-vetting process for a proposed permanent rule on these medical exceptions to the abortion ban. It looked exactly the same as the recently released emergency rule.

The agency publicly advertised that proposed rule in September and held a hearing on it in October. Several people, including doctors and anti-abortion advocates, provided written feedback and in-person comments on the proposition.

But it’s unclear whether the Edwards administration is moving forward with that proposition any longer. 

“LDH does not have a current timeframe for the final rule,” Litten said.

The current and proposed rules are controversial. Both anti-abortion advocates and doctors dislike the state’s approach to abortion ban exceptions, though for different reasons. 

Anti-abortion advocates want to do away with the list of exceptions altogether. They believe fetuses are unborn children and pregnancies shouldn’t be terminated because it amounts to killing a child. Even if a baby will only survive for a few hours or days after birth, the anti-abortion advocates believe a person should have to carry a pregnancy to term. 

Meanwhile, physicians who specialize in obstetrics said the state rules are confusing and don’t reflect the way medicine works. Pregnancies in jeopardy don’t always present themselves in a straight-forward manner as the state’s list of medical conditions suggests, they said.

If such a list is required, doctors testified that it should be greatly expanded to include more conditions and continuously updated by health officials.