NEW ORLEANS — A divided federal appeals court has refused to reconsider a decision upholding Louisiana’s law requiring that abortion providers have admitting privileges at nearby hospitals, despite a dissenting judge’s insistence that the decision is in “clear conflict” with a Supreme Court decision striking down a similar Texas law.
A three-judge panel of the New Orleans-based 5th U.S. Circuit Court of Appeals had ruled in September, in a 2-1 decision, that the Louisiana law did not impose the same burdens on women as the Texas law. On Friday, the court said the full court decided in a 9-6 vote against a rehearing.
Writing for the two-judge majority in September, Judge Jerry E. Smith had rejected arguments by opponents of the law that it would likely lead to the closure of one or more of the three clinics now providing abortions in Louisiana and lead to a loss of access to safe and legal abortion by 70 percent of the women seeking the procedure in Louisiana. The majority opinion then held that the law’s opponents overstated the difficulty abortion doctors would have in obtaining admitting privileges at nearby hospitals, and the burden the law would put on women seeking abortions.
Friday’s decision added nothing to Smith’s earlier opinion, which overturned an earlier decision by Baton Rouge-based U.S. District Judge John deGravelles. But Judge James Dennis wrote a highly critical 20-page dissent.
Dennis said the Louisiana law provides no medical benefit for women and could seriously limit access for many.
Dennis said the Texas law, struck down by the Supreme Court in a case known as Whole Woman’s Health, is “almost identical” to the Louisiana law. He echoed the September dissent by panel member Patrick Higginbotham, who had taken his fellow judges to task for, in effect, retrying the case after deGravelles had given full consideration to the facts.
“The panel majority also improperly reverses the district court’s well-supported factual findings regarding the devastating effects on women’s rights to abortion that will result from Louisiana’s admitting-privileges requirement,” Dennis wrote, “instead retrying those facts de novo at the appellate level.”
Voting with Smith against a rehearing were judges Edith Jones, Priscilla Owen, Jennifer Walker Elrod, Catharina Haynes, Don Willett, James Ho, Kurt Engelhardt and Andrew Oldham. Voting for a rehearing were Dennis; Stephen Higginson, who also wrote a short dissent; chief Judge Carl Stewart; Leslie Southwick; James Graves and Gregg Costa.
Higginbotham and Judge Edith Clement, who had joined Smith in the September opinion are on “senior status.” They can hear cases but do not vote with the court’s active judges on whether to grant re-hearings.