Constitutional Law

5th Circuit finds no undue burden in law curbing liability protection for abortion providers


A federal appeals court has upheld a Louisiana law that removed liability protections for abortion providers.

The New Orleans-based 5th U.S. Circuit Court of Appeals ruled on Wednesday that the 1997 law is not an undue burden on women’s right to abortion, according to an ABA media alert.

The appeals court acknowledged that the law “may make it difficult—perhaps prohibitively difficult—for [abortion] providers to obtain the relevant insurance.” But it does not pose a substantial obstacle to women’s choice, the court said in its opinion (PDF).

“While ‘government may not place obstacles in the path of a woman’s exercise of her freedom of choice, it need not remove those’ obstacles, like Louisiana’s dearth of affordable insurance, that are ‘not of [the government’s] own creation,’ ” the court said.

The 1997 law bars physicians accused of abortion-related injuries from receiving benefits from a state patient compensation fund that caps physician liability at $100,000. Physicians participating in the fund can self-insure through the fund and need not obtain separate malpractice insurance.

The plaintiffs challenging the law are the Hope Medical Group for Women, its medical director and another physician there who was sued in 2007 for alleged negligence in an abortion.

The appeals court said the plaintiffs had standing to challenge the section of the law regarding participation in the state fund. But the appeals court found the plaintiffs did not have standing to challenge another section of the law that creates a cause of action for abortion-related damage, including “injuries suffered or damages occasioned by the unborn child.” The plaintiffs had contended the law amounted to strict liability for abortion providers.

The case is K.P. v. Leblanc.

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