Comment by Jennifer L. Achilles
In Louisiana, after years of making its way through the federal and state court systems, Louisiana Revised Statutes Annotated section 9:2800.12 (Act 825) is now in effect. This statute, passed by the Louisiana Legislature in 1997, makes it a civil wrong for a doctor to perform an abortion. Therefore, in Louisiana, a woman currently has a statutory right to sue the doctor who competently performed the abortion, to which she consented, for the wrongful death of her fetus. And medical malpractice insurance will not cover the lawsuit. Almost immediately after the Legislature passed Act 825, doctors and prochoice groups challenged the constitutionality of the law in federal court. Although both the district court and a three-judge panel of the Fifth Circuit found the statute unconstitutional, a majority of the Fifth Circuit, sitting en banc, held that the plaintiffs did not have standing to ask for an injunction enjoining the statute's enforcement. A subsequent challenge in state court yielded the same result.
This Comment analyzes the legal flaws in the judicial opinions used to keep doctors and advocates from facially challenging Act 825. It also discusses the direct implications of Act 825, including the inevitable chill on abortion services in Louisiana, and the indirect implications of the Act on due process rights in general. Act 825 is a misuse of legislation, an infringement on a doctor's right to practice medicine, and a denial of a woman's ability to choose what is best for her own body. Even worse, in an attempt to strengthen federalism and states' rights, the Fifth Circuit mishandled standing jurisprudence to allow Act 825 to stay on the books. Unfortunately, this “federalism run amok” could have dangerous consequences for the future of all civil and due process rights.
About the Author
Jennifer L. Achilles. Judicial law clerk to the Honorable James J. Brady, M.D. La. B.A. 1996, Vassar College; M.S. 1998, Yale University; J.D. 2003, Tulane University School of Law.
Citation
78 Tul. L. Rev. 853 (2004)