A group of Louisiana health care providers and reproductive rights advocates are suing the state over a new law that classifies abortion pills as controlled dangerous substances.

The law went into effect a month ago and puts mifepristone and misoprostol — the two pills involved in a medication abortion — on Louisiana’s list of “Schedule IV” drugs. The category also includes certain stimulants, sedatives and opioids.

It’s the first time a state has classified abortion pills as controlled substances. 

In Louisiana, abortion is largely banned, so the law has not had a major impact on abortion access. However, abortions are allowed in some exceptional circumstances, and doctors often prescribe mifepristone and misoprostol off-label to manage a miscarriage. Misoprostol on its own is approved, as well, to prevent stomach ulcers.

In Louisiana, classifying the medications as Schedule IV drugs means that doctors must have a special license to prescribe them and hospitals are required to store the pills in a secure location, according to Allison Zimmer, an attorney representing the plaintiffs. Anyone who possesses the medications without a prescription could face a fine of up to $5,000 and up to five years in jail. (The law includes a broad exception, however, for pregnant women who possess the medications for their own consumption.)

The new lawsuit, filed Thursday, alleges that the law could create barriers for health care workers who need to administer mifepristone and misoprostol quickly in an emergency, thereby delaying patients’ access to the pills and creating a risk of harm. The complaint also says the law discriminates against people who need the medications, since patients with similarly severe medical needs aren’t subject to the same delays if they need other drugs. It seeks to prevent the law from being enforced.

“What it will do is just make it more dangerous to be pregnant or to have a variety of physical conditions,” Zimmer said.

The plaintiffs include a doctor, pharmacist, two reproductive rights advocates and the Birthmark Doula Collective — a doula practice that advocates for pregnant people in Louisiana. It names the state, the attorney general, the board of pharmacy and the board of medical examiners as defendants.

“The law is supposed to prevent misuse of the medications, but the real aim is to make abortion harder to access,” said Nancy Davis, one of the two advocates who brought the suit.

According to the American College of Medical Toxicology, mifepristone and misoprostol do not meet the definition of a controlled substance. The association warned in September that labeling the pills as such was “not consistent with decades of scientific evidence” and set a dangerous precedent of “politicizing pharmaceutical regulation.”

But Louisiana Attorney General Liz Murrill maintained support for the law on Friday.

“I’m confident this law is constitutional. We will vigorously defend it,” Murrill said in a statement.

In Louisiana, abortions are allowed only in cases where a fetus is not expected to survive, or if ending a pregnancy could save a pregnant person’s life or prevent serious risk to their health.

Zimmer said the new classification for abortion pills is “an example of the state trying to demonstrate as much as possible that it is an anti-abortion state.”

The law came about as a response to a particular case in Texas involving Louisiana Sen. Thomas Pressly’s sister Catherine Herring, whose husband was accused of slipping abortion pills into her drinks. The baby survived, and Herring’s husband pleaded guilty to charges of injury to a child and assault of a pregnant person. The Louisiana law established a crime known as “coerced abortion” — intentionally giving a pregnant woman abortion pills without her knowledge or consent.

“Ms. Herring’s courageous testimony illustrated that easy access to these drugs can be dangerous to pregnant women and exposes women to the risks of coercion, abuse, and criminal behavior,” Murrill said in a statement.

When Pressly originally introduced the bill, it did not include a classification of abortion pills as controlled substances — that was added later as an amendment, which Pressly said at the time was another step “to control the rampant illegal distribution of abortion-inducing drugs that ended up hurting my sister.”

But the new lawsuit alleges that the amendment isn’t clearly connected to the original bill and suggests that the law should be struck down altogether. Zimmer said the amendment was added “very, very late in the legislative process, at such a late date that there wasn’t a public hearing.”

The lawsuit says that Davis and another plaintiff in the suit, Kaitlyn Joshua, did not get an opportunity to testify in front of lawmakers before the law passed.

Joshua, a 32-year-old Baton Rouge resident, said she was turned away from two emergency rooms in 2022 after she started miscarrying at around 11 weeks. She worries that the policy could lead more women in Louisiana — particularly Black women — to be denied care like she was.

“This current law I know is going to disproportionately affect women that look like me, that already live in maternal health care deserts,” Joshua said.

by Julie O’Donoghue, Louisiana Illuminator
November 1, 2024

The Louisiana Supreme Court issued guidance to state judges Wednesday encouraging them to grant state lawmakers who are attorneys extensions on court proceedings during legislative sessions in most cases.

The court’s new rule comes less than a week after the justices declared unconstitutional a law that gave lawyers who legislators a similar but much broader benefit. The defunct statute had granted such lawmakers automatic delays in court actions when they interfered with a wider range of legislative duties, including travel to the State Capitol.

The justices were troubled the legislative continuance mandate had essentially no wiggle room. It did not give opposing counsel or judges the discretion to challenge a lawmaker’s request for a delay in a court case. 

The Supreme Court’s new rule this week hems in the previous privilege for legislators in court while also instructing judges to err on the side of allowing legislators’ delays. 

The guidance was issued somewhat urgently because the lawmakers are headed into a special legislative session Wednesday that is expected to last almost three weeks. Legislators who are attorneys have said they have court proceedings that will conflict with the special session calendar.

Votes during the session, which will be focused on tax policy, are also expected to be unusually close. This means parts of Gov. Jeff Landry’s tax package could fail if just one or two lawmakers are absent. 

“It’s fair to say that the session did result with us moving with more deliberation than we would normally do,”  Chief Justice John Weimer said about the rule in an interview Thursday.

Under the new legislative continuance rule, opposing attorneys will now have the right to challenge when a lawmaker wants to reschedule court proceedings if they suspect it would cause an “unnecessary delay” or “increase the cost of litigation.” They can also ask for it to be denied if it would cause their client “substantial and immediate irreparable harm.”

Attorneys who are lawmakers will also face a new requirement when asking for a legislative continuance. They will have to provide an affidavit showing they will be attending the legislative session that causes a conflict with their court proceedings. The lawmaker will also have to demonstrate that he or she is an attorney actively working on the case in question.

Outside of legislative sessions, lawmakers will also only be able to obtain continuances if they present an affidavit that shows “good cause” for the delay. In the past, judges had no choice but to grant a legislative continuance, regardless of when it was requested. 

The new restrictions the justices have imposed are supposed to address concerns raised by attorneys who aren’t lawmakers in recent years. They include that legislators sometimes enroll as counsel on cases where they don’t do much work to allow their side to take advantage of automatic delays. Another frustration is that cases drag on for years because lawmakers ask for multiple extensions.

The lawmaker complaining in the loudest, most public way about the Supreme Court overturning the state legislative continuance law also happens to be an attorney whose conduct led to the supreme court’s ruling. 

“I think a working knowledge of civics is not required to serve on the Louisiana Supreme Court,” Sen. Alan Seabaugh said in an appearance on KEEL-AM in Shreveport. “The ruling that the court passed down last week is absolutely nonsensical.” 

Two plaintiffs attorneys asked the state Supreme Court to throw out the legislative continuance statute after struggling to close an automobile accident lawsuit where they faced off against Seabaugh and state Rep. Michael Melerine, Shreveport Republicans who are partners in the same law practice. 

The plaintiffs lawyers said Seabaugh and Melerine’s legislative extensions had unreasonably delayed resolution of their client’s lawsuit over six years. The court sided with the plaintiffs attorneys after describing Seabaugh’s unusual delays in the lawsuit as reprehensible.

Seabaugh has been a state lawmaker since 2012, including 12 years in the Louisiana House of Representatives before he was a stte senator. Melerine took Seabaugh’s seat in the House in January.

In the radio interview, Seabaugh alleged the court ruling was payback for lawmakers scuttling a new Louisiana Supreme Court district map some of the justices had favored.

“The fact of the matter is it was retaliation because of their redistricting plan, which the Senate killed twice,” Seabaugh said. “This was the Supreme Court flexing their muscle to the Legislature.”

“This was judicial activism at its worst,” he added

. 

Weimer said Seabaugh is “entitled to say whatever he wants,” but the justices didn’t throw out a law because they were upset about the Supreme Court district map.

“We don’t sit around anxiously waiting to strike down a law as unconstitutional,” Weimer said. “I make decisions based on logic and reason and not emotion.” 

Though the ruling is less than a week old, Seabaugh and Melerine have already run into personal problems getting at least one trial rescheduled based on the newfound discretion to reject legislative extensions.

Judge Nicholas Gasper of the 42nd Judicial District Court in DeSoto Parish denied their motion to move a jury trial scheduled to start Monday because of the special session, which gets underway two days later, according to court filings.

Seabaugh and Melerine are appealing Gasper’s decision to Louisiana’s 2nd Circuit Court of Appeal. 

Other legislators plan to try to resolve the legislative extension issue over the next few weeks. Bills will be filed in the special session to establish a new continuance law, said Sen. Greg Miller, R-Norco, who is an attorney.

“I want to keep the framework that we had but address the Supreme Court’s concerns” about abuses, Miller said in an interview Thursday.

Miller said he didn’t think the court’s new rule fully covers the problems that arise from conflicting legal and legislative schedules. For example, under the new rule, a judge could schedule a trial for the day after a legislative session ends, which would give an attorney who is a lawmaker little time to prepare. 

“We are at the mercy of the courts,” he said.

Sen. Jay Luneau, D-Alexandria, said the Supreme Court’s rule also doesn’t address scheduling conflicts the Legislature’s staff attorneys might have during session. Some work on private cases to supplement their incomes outside of the regular legislative session, he said.

The law declared unconstitutional also granted those legislative staff attorneys access to legislative continuances, but the court’s recent rule doesn’t, said Luneau, who is also a lawyer. 

Louisiana Illuminator is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Louisiana Illuminator maintains editorial independence. Contact Editor Greg LaRose for questions: info@lailluminator.com. Follow Louisiana Illuminator on Facebook and X.

Earlier this month, Louisiana became the first state in the country to classify the two most common drugs used in medication abortions, mifepristone and misoprostol, as Schedule IV controlled substances, creating stiff penalties for their unauthorized use. Medical providers sounded alarms when the GOP-controlled legislature passed the law: Abortion is already banned in the state in nearly all cases, and the new classification would delay lifesaving care for people experiencing miscarriages and health conditions unrelated to pregnancy. 

Now, in a just-filed lawsuit, doulas, medical providers, and women denied care under the state’s abortion law argue that the new classification of mifepristone and misoprostol runs afoul of Louisiana’s constitution. By separating the drugs from others with similar risk profiles, the suit contends, the new law discriminates against people on the basis of their physical conditions, ones that are treated with mifepristone and misoprostol.

In Louisiana, controlled substances fall into five categories depending on their medical indications and risk for abuse—Schedule I being the highest risk, and Schedule V the lowest risk. The current list of Schedule IV drugs includes opioids, barbiturates, and benzodiazepines, all drugs with high potential for addiction. The classification of mifepristone and misoprostol as dangerous drugs subjects them to tight regulations. But they’re not dangerous drugs, nor do they have abuse potential like their Schedule IV counterparts; more than 100 studies have shown them to be safe and effective in ending pregnancy. Contrary to their current classification in Louisiana as having addictive potential, the Food and Drug Administration—which approved the drugs decades ago—has never found the medications to lead to physical or psychological dependence. 

Misoprostol and mifepristone have proven to be effective in a variety of contexts. Both are used in miscarriage care, mifepristone is used to treat ovarian cancer, and misoprostol is crucial to managing postpartum hemorrhages. Under Louisiana’s law, anyone in possession of either drug—except for pregnant women—is subject to five years in prison and a $5,000 fine. 

The classification, the lawsuit argues, subjects the drugs to a “highly regulated legal scheme” that delays care. Previously, misoprostol was commonly stored in obstetric hemorrhage carts or in staff’s pockets. But under its new status, only a provider licensed to administer controlled substances can retrieve the drug from locked cabinets where other scheduled substances, like narcotics, are stored. As a New Orleans OB-GYN told my colleague Julianne McShane, in a medical emergency, time is of the essence, and even a delay of several minutes can have disastrous consequences.

Pregnant women were already being denied care before the medications were reclassified. One of the plaintiffs, Kaitlyn Joshua, was denied miscarriage care by two hospitals because of the state’s abortion ban. “Now lawmakers have passed yet another law making it harder to get care during a miscarriage, and they did it without following the requirements of the State’s constitution,” Joshua said in a news release.