These pregnancy conditions would allow for an abortion under Louisiana ban

State uses “emergency” process to come up with list, foregoing public comment

By: - August 1, 2022 8:23 pm
A physician writes on a clipboard next to a pregnant woman with her hands on her midsection.

(Canva image)

The Louisiana Department of Health on Monday released a longer list of pregnancy and fetal conditions that could allow a person to terminate a pregnancy even with Louisiana’s abortion ban in place. 

The list defines what lawmakers characterized as a “medically futile” pregnancy – one that is expected to produce a child who could live outside the womb for more than a few days – in a new state law passed earlier this year.

The conditions on the list include:

*Achondrogenesis, which results in underdeveloped lungs that can cause a baby to die a few days after birth

*Bilateral renal agenesis, where a baby is born without kidneys and can only survive a few days

*Triploidy, where a baby is born with an extra chromosome and dies within a few days 

Doctors who deliver babies have said the list won’t do much to clear up confusion over what care they are allowed to provide under an abortion ban. Medicine doesn’t always operate in such black and white terms, where pregnancies are either viable or not based on an explicit set of conditions, they said. 

“[The health department] will never be able to think of everything because medicine doesn’t work like that,” said Rebekah Gee, an obstetrician/gynecologist based in New Orleans and the former head of the Louisiana Department of Health. “You will never come up with a complete list.” 

Under the state’s abortion ban, which went back into effect Monday, Louisiana physicians have complained they don’t know when they can intervene with a miscarriage or dangerous pregnancy.

The procedures for elective abortions are also commonly used to resolve miscarriages, but hospital attorneys have blocked doctors from providing those treatments to miscarrying patients over the last month out of fear that they might now be illegal. 

State law only permits doctors to perform abortions if a pregnant person’s life is at risk or substantial harm could come the person’s life-sustaining organs. They can also terminate a pregnancy so long as it meets this new “medically futile” criteria, though a doctor must have at least one other doctor to confirm that “medically futile” diagnosis before proceeding.

Lawmakers inserted the “medically futile” pregnancy exception into the state’s abortion ban late in the legislative process this spring, and only after doctors testified that the state’s original abortion ban would force patients to carry on with pregnancies for months that would only produce a child who died shortly after birth. 

Louisiana’s leading anti-abortion group, Louisiana Right to Life, fought the “medically futile” exception initially, arguing that any viable pregnancy should not be ended, even if it was expected to result in a baby who would die within a few days. But in the end, lawmakers voted to allow an opening for abortions in these cases. 

The Louisiana Department of Health said it consulted with the Louisiana State Board of Medical Examiners and the Louisiana State Medical Society when developing the list of conditions that render a pregnancy “medically futile,” but the agency hasn’t said which individuals specifically drafted it and whether they are obstetricians and gynecologists.

The list of “medically futile” conditions was adopted through the state’s emergency rule-making process, which allowed the health department to bypass a lengthy public comment and feedback period required during the regular rule-making process.

The state said emergency rule-making was necessary because the absence of a “medically futile” pregnancy definition would put the state in “imminent peril.” It’s only supposed to be in place for a maximum of six months, while the agency goes through the regular rule-making process, which typically takes at least three months. 

Opponents of the abortion ban do have an option to challenge the emergency rule if they want. A state district judge could throw out the emergency rule if the judge is convinced it should not have been adopted on an emergency basis. Lawmakers who are members of the Legislature’s health and welfare committees can also vote to overturn it.

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Julie O'Donoghue
Julie O'Donoghue

Julie O’Donoghue is a senior reporter for the Louisiana Illuminator. She’s received awards from the Virginia Press Association and Louisiana-Mississippi Associated Press.