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US appeals court hears New Orleans abortion case

January 9, 2019

NEW ORLEANS (AP) — A Planned Parenthood lawsuit accusing Louisiana officials of illegally delaying a license for a new abortion clinic in New Orleans should be dismissed, the state’s attorneys told a federal appeals court Wednesday.

Planned Parenthood Gulf Coast and Planned Parenthood Center for Choice and three women filed the federal lawsuit last February, saying the state has illegally delayed acting on the license application, in part by citing “sham” investigations of allegations the women’s health organization profited from sales of fetal tissue for medical research. The license application was made in September 2016.

State attorneys argue that the investigations they cite in court documents are legitimate and that the lawsuit is an attempt to get federal judges to improperly usurp a legitimate state function. And they say Planned Parenthood should have sought meetings and appeals with the state health department before going to federal court.

“Ultimately, what they are trying to do is circumvent the entire licensing process,” Elizabeth Murrill, of the state Attorney General’s Office, told a three-judge panel of the 5th U.S. Circuit Court of Appeals.

Rachel Shalev argued for Planned Parenthood that the suit alleges violations of federal rights — including due process, equal protection under the law and the placing of undue burdens on the right to an abortion — that merit federal court action.

U.S. District Judge John deGravelles in Baton Rouge refused to dismiss the case in May. The state appealed to the 5th Circuit, where three judges, Patrick Higginbotham, Jennifer Walker Elrod and James Ho, heard the arguments. An immediate ruling was not expected.

Planned Parenthood’s New Orleans clinic opened in June 2016 and provides a variety health services for women. The organization doesn’t now provide abortions in the state. It says a license to perform abortions at the New Orleans clinic is badly needed in a state where, under legal and political environment largely hostile to abortion rights, the number of clinics offering the procedure has dwindled from seven to three since 2010

They accuse the state of numerous legal delays aimed at blocking abortion at the New Orleans clinic, dating to former Republican Gov. Bobby Jindal’s two terms and continuing under Gov. John Bel Edwards, an anti-abortion Democrat. The office of Louisiana Attorney General Jeff Landry, a Republican who is often critical of Edwards on other issues, is defending the state.

Examples of roadblocks cited in the lawsuit include attempts to block Medicaid funding for non-abortion medical services at Planned Parenthood clinics, so far thwarted by the courts; and a law, signed in 2016 by Edwards, that blocks state funding for any organization that provides abortion in the state.

Planned Parenthood lawyers say sham investigations cited by the state deal with alleged improper use of fetal tissue — allegations that the abortion provider says were contained in deceptively edited videos circulated online by abortion opponents. Investigations sparked by the videos in several states didn’t result in criminal charges.

Murrill said the investigations deal with a variety of legal issues bearing on whether the state should grant a license.

Higginbotham, at times, appeared openly skeptical of the state’s arguments, saying at one point, that the record involving Planned Parenthood’s efforts to build the clinic and perform abortions there shows a decade of delays. “Over a period of 10 years it’s stall, stall, stall, stall, stall,” he said.

But judges also questioned Planned Parenthood attorneys on whether the state had a point that state-level remedies should be pursued.

Higginbotham was nominated to the court by President Ronald Reagan; Elrod, by President George W. Bush; and Ho, by President Donald Trump.

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