Both sides of abortion debate criticize Louisiana’s list of exceptions

By: - October 25, 2022 4:06 pm
New Orleans protest over Supreme Court overturning abortion ruling

Protestors march toward City Hall in New Orleans to protest the U.S. Supreme Court’s ruling June 24, 2022, that overturned the landmark Roe v. Wade decision that legalized abortion. Louisiana is now trying to develop a list of conditions that would warrant an abortion, despite the state’s abortion ban. (Piper Hutchinson/Louisiana Illuminator)

Few people appear happy with Louisiana’s approach to carving out medical exceptions for the state’s sweeping abortion ban

Doctors and anti-abortion advocates criticized the state’s list of two dozen “medically futile” pregnancy conditions that could still be used to access a legal abortion. They spoke Tuesday at a sparsely attended public hearing held on the state’s abortion regulations. 

A handful of physicians and medical students told health officials the list is too short and too explicit to be useful. It doesn’t provide enough flexibility to doctors and pregnant patients, especially those carrying fetuses that can’t survive outside the womb, they said.

“There are a lot of conditions absent from this list and conditions that would profoundly affect the life of that child, and the family of that child,” said Dr. Nina Breakstone, an emergency medicine physician in New Orleans. “The list, as it exists, has created an atmosphere of terror among my colleagues.”  

A small group of anti-abortion advocates questioned whether the list should exist at all, albeit for different reasons than the doctors gave. They said abortion should be further restricted, including in cases where a fetus has a condition that isn’t survivable and where a baby resulting from that pregnancy would live – at best – for a very short time. 

“Our culture sells women short. They are so capable” of caring for babies who will die shortly after birth, said Dr. Kim Hardey, a Lafayette obstetrician and gynecologist who runs an anti-abortion pregnancy crisis center. “They will always wonder what that baby that they aborted would look like.” 

In August, the Louisiana Department of Health adopted a list of 24 medical conditions that warrant exceptions to the abortion ban on a temporary basis. Louisiana lawmakers required the agency to do so when they approved a law last spring directing health officials to create a narrow group of conditions that could justify terminating a pregnancy . 

In order to make that list of exceptions permanent though, the state must go through a lengthy public process that could last several months. Tuesday’s hearing is part of that required procedure.

Conditions on the list include those in which a fetus develops without kidneys, fully formed lungs or other life-sustaining organs. A baby resulting from those pregnancies would be expected to die within a few weeks after birth.

Doctors have complained the list is arbitrary and doesn’t mesh well with the way medicine is practiced. The health department has refused to answer questions about who was involved in developing the list of medical conditions, including what doctors and outside groups might have been consulted. 

Physicians and medical students said Tuesday every pregnancy can present different challenges, which makes it difficult to come up with an explicit set of conditions for which terminating a pregnancy would be acceptable.

“This list was thrown together relatively quickly, so while it includes many conditions that are medically futile, there are hundreds of other conditions that should be added,” said Dr. Jane Martin, who specializes in maternal fetal medicine and treats patients with high-risk pregnancies in the New Orleans area. 

Breakstone, the emergency medicine physician, suggested the health department adopt “broad categories” of pregnancy problems that could warrant an abortion, instead of a list of definitive illnesses, so that more problematic pregnancies could be covered.

So far, the health department has proposed adding just one condition – acrania, in which a fetus develops without a skull. Health officials have refused to explain why it was added, but the proposal for change came in September, shortly after a Baton Rouge woman whose fetus had acrania told news media she was denied an abortion at a local hospital. 

Otherwise, health officials have said that many other grave pregnancy conditions not explicitly on the medically futile list should be covered by a catch-all exception also included in state regulations. Abortions are allowed, in general, if a fetus has a “profound and irremediable congential or chromosomal anomaly … that is inconsistent with sustaining life after birth.” Two doctors must confirm that the condition is unsurvivable.

“[The regulation] is an evolving document and LDH has always said that the list would not be able to encompass every possible diagnosis that would meet the definition of ‘medically futile,’” health department spokeswoman Aly Neel said last week. “That is why the [current regulation] does – and the [final regulations] will – provide for physician certification of other conditions that would allow for termination.” 

Martin, the maternal fetal care physician, said many parts of the state don’t have more than one doctor who delivers babies and treats pregnant people. Finding a second doctor to verify the medically futile findings of the first will be difficult, she said.


Breakstone also said it’s unlikely any Louisiana doctor or hospital will agree to terminate a pregnancy if the fetus is suffering from a condition not explicitly listed as an exception in the state regulation. The stakes for doctors, who face prison time if they perform an illegal abortion, are too high if law enforcement disagrees with their decision.

Breakstone doubts that even people with pregnancies affected by the conditions on the list will be able to get abortions in Louisiana. Many of the conditions can’t be detected until the second trimester of pregnancy and most health care providers in Louisiana won’t perform abortions after three months of pregnancy. 

“Even if you had a fetus with one of these conditions, I don’t think it would be possible to get care in Louisiana,” she said.

The health department has not released a timeline for when it might expand the medically futile conditions list or propose other changes to the regulations, but the process is expected to continue for at least two more months. Lawmakers could also weigh in on the potential regulations through hearings in the coming weeks.

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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.