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Denying Abortion Providers Access to a Patient Compensation Fund is not Unconstitutional – K.P. v. Leblanc
Published online by Cambridge University Press: 06 January 2021
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- Copyright © American Society of Law, Medicine and Ethics and Boston University 2014
References
1 (K.P. II), 729 F.3d 427 (5th Cir. 2013).
2 LA. REV. STAT. ANN. § 9:2800.12 (West 2009 & Supp. 2014).
3 LA. REV. STAT. ANN. § 40:1299.44 (West 2008 & Supp. 2014).
4 K.P. II, 729 F.3d at 440-43.
5 See K.P. v. LeBlanc (K.P. I), 627 F.3d 115, 119 (5th Cir. 2013).
6 See id.
7 See id.
8 LA. REV. STAT. ANN. § 9:2800.12(A) (West 2009 & Supp. 2014).
9 Id. § 9:2800.12(C)(2).
10 K.P. I, 627 F.3d at 119-20.
11 Id. at 119.
12 Id. at 120.
13 See id.
14 Id. (the Fifth Circuit reasoned that the Board's role in enforcing the Statute supplies the requisite connection between the state actor and the allegedly unconstitutional statutory scheme to remove the Eleventh Amendment barrier to the action).
15 See Hope Med. Group for Women v. Leblanc, No. 07-879, 2012 WL 701174 (M.D. La. Mar. 1, 2012).
16 Id. at *2.
17 Id. at *3 (citing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992)).
18 Id. at *4.
19 See Okpalobi v. Foster, 190 F.3d 337, 354-60 (5th Cir. 1999), rev’d on other grounds, 244 F.3d 405 (5th Cir. 2001) (en banc), (holding that the Statute was unconstitutionally vague and that it imposed an undue burden on a woman's right to seek a pre-viability abortion).
20 Hope, 2012 WL 701174, at *2, *5.
21 Id. at *2-3 (quoting Okpalobi, 190 F.3d at 357-59) (internal quotations omitted).
22 Id. at *3-4 (citing Okpalobi, 190 F.3d at 354-57).
23 Id. at *4-5.
24 See LA. REV. STAT. ANN. § 40:1299.35.6(B) (West 2008 & Supp. 2014) (the Right to Know Act delineates information that abortion providers must provide to abortion patients in order for the patients’ consent to be considered informed).
25 Hope, 2012 WL 701174, at *4-5 (citing Okpalobi, 190 F.3d at 356-57).
26 K.P. II, 729 F.3d 427, 435.
27 Id. at 440 (citing Stefanoff v. Hays Cnty., 154 F.3d 523, 526 (5th Cir. 1998); Malagon de Fuentes v. Gonzales, 462 F.3d 498, 504 (5th Cir. 2006) (internal quotations omitted)).
28 Id.
29 Id. at 441.
30 Id. (quoting LA. REV. STAT. ANN. § 9:2800.12(C)(1) (West 2009 & Supp. 2014)).
31 Id.
32 Id.
33 LA. REV. STAT. ANN. § 9:2800.12(C)(2) (“The laws governing medical malpractice or limitations of liability thereof provided in Title 40 of the Louisiana Revised Statutes of 1950 are not applicable to this Section.” (Title 40 refers to the Med-Mal Act)).
34 K.P. II, 729 F.3d at 441 (discussing LA. REV. STAT. ANN. § 40:1299.35.6(B) (West 2009 & Supp. 2014)).
35 Id. at 442.
36 Id. (citing Harris v. McRae, 448 U.S. 297, 315 (1980)).
37 Id. (citing Harris, 448 U.S. at 316).
38 Id. (citing Harris, 448 U.S. at 316) (holding an amendment which made Medicaid funds unavailable for the majority of abortions was constitutional under the Due Process Clause, stating that the government need not remove obstacles that it did not create in order to facilitate the exercise of the protected freedom).
39 Id. (citing Harris, 448 U.S. at 316).
40 Id. at 443 (finding the claim that subsection (A) is unconstitutionally vague was unredressable because the Board was not charged with enforcing subsection (A); therefore, a ruling against the Board would not provide relief to the Providers).
41 LA. REV. STAT. ANN. § 9:2800.12(A) (West 2009 & Supp. 2014).
42 K.P. II, 729 F.3d at 433.
43 K.P. II, 729 F.3d.
44 Id. at 441.
45 See Hollis v. United States, 323 F.3d 330 (5th Cir. 2003).
46 K.P. II, 729 F.3d at 441.
47 See Applewhite v. Dept. of Veteran Affairs, 364 Fed. App’x 97, 99 (5th Cir. 2010).
48 LA. REV. STAT. ANN. § 9:2800.12(A) (West 2009 & Supp. 2014) (emphasis added).
49 Id. § 9:2800.12. While the Statute provides that “[t]he signing of a consent form … does not negate this cause of action, but rather reduces the recovery of damages to the extent that the content of the consent form informed the mother of the risk of the type of injuries or loss for which she is seeking to recover”, it seems highly improbable that the Statute, especially subsection (A), would allow for any portion of recovery to be reduced.
50 K.P. II, 729 F.3d at 441.
51 Id. at 442.
52 The Okpalobi court held the Statute was strict liability in nature, and held that this would likely decrease the number of physicians offering the procedure; this argument holds true for exclusion from the Fund as well, as it may elicit similar financial concerns.
53 Okpalobi, 190 F.3d at 360.
54 See Harris, 448 U.S. at 329-357 (finding that both the lack of government funding and the threat of incurring greater damages by performing a specific procedure may cause fewer providers to offer or perform that procedure, or lead providers to offer the procedure at a greatly increased cost).
55 See Alex Stein, Using Malpractice Laws to Sabotage Roe v. Wade, BILL OF HEALTH (Sept. 6, 2013, 1:20PM), http://blogs.law.harvard.edu/billofhealth/2013/09/06/using-malpractice-laws-to-sabotage-roe-v-wade/.
56 See id. (noting that providers could make an equal protection claim if a provider was denied a screening panel to assess a claim that the provider believed to be unmeritorious).