Louisiana health care providers are suing the state, claiming the misoprostol law violates the constitution

BATON ROUGE, La. (Illuminator Louisiana) – Health care workers and attorneys filed a lawsuit Thursday against the state of Louisiana, on their own behalf and on behalf of their patients, challenging Act 246, a new state law that reclassifies mifepristone and misoprostol as controlled dangerous substances.

The lawsuit was filed in the 19th Judicial District Court in East Baton Rouge Parish against the State of Louisiana, Attorney General Liz Murrill, the State Board of Pharmacy and the State Board of Medical Examiners. The plaintiffs include perinatal organization Birthmark Doulas, family physician Dr. Emily Holt, pharmacist Kaylee Self, and reproductive health advocates Nancy Davis and Kaitlyn Joshua, both of whom were denied pregnancy care in the state.

“This case concerns the unconstitutional regulation of drugs that people need for non-abortion reasons simply because those drugs can also be used for abortion,” the suit says.

It is the first lawsuit filed in response to the controversial law, which went into effect on October 1. It targets mifepristone and misoprostol, as both can be used for medical abortion, although each has several other uses. In addition, elective abortions are banned in the state and have been since the summer of 2022.

“We’re seeking to have this law invalidated because it violates the Louisiana Constitution in two separate ways,” said Ellie Schilling, one of the attorneys representing the plaintiffs, along with attorneys from Lift Louisiana and the Lawyering Project, both reproductive rights organizations.

Murrill said she has not yet seen the lawsuit, “but I am confident this law is constitutional,” she said in a text message through a spokeswoman. “We will vigorously defend it.”

Schilling said her team argues the law violates the state constitution’s equal protection clause by discriminating against people based on physical condition. People who need mifepristone and misoprostol — and those who order, prescribe and fill the drugs — are treated differently than people with similar medical conditions who need treatment with drugs with the same low-risk profile, she explained.

“In some cases, this discrimination is life-threatening,” the lawsuit states.

Schilling said that because the drugs do not have the potential to cause addiction and dependence, there is no justification for making them Schedule IV drugs under the new law.

The second argument the plaintiffs make is that the process of approving the law did not comply with the Louisiana Constitution because the drugs were reclassified through an amendment to a forced abortion bill. Article III of the constitution prohibits any amendment of a bill that is not “German” from its original version.

“The original purpose of the legislation was to create a forced abortion crime,” Schilling said, “meaning to criminalize people who provide an abortion-producing drug to someone else without their knowledge for the unlawful purpose of causing an abortion without their consent. But the amendment regulates those drugs when (they) are prescribed and used for an entirely valid legal purpose unrelated to abortion.”

The amendments were “extremely problematic” because they were added late in the process without any proper vetting to analyze the law’s potential impact, Schilling said. The amendments were added to the bill from state Sen. Thomas Pressly, R-Shreveport, during a House criminal justice committee meeting after it passed the Senate.

“Once introduced, the amendment passed the committee within minutes and without any opportunity for the public or medical experts to evaluate the appropriateness of such a drastic change to the bill or the Uniform Controlled Hazardous Substances Act,” the lawsuit states. .

Pressly declined to comment for this report.

The amendments sparked an outcry in Louisiana’s medical community, with nearly 300 doctors signing a letter opposing the measure. The bill was signed into law by Gov. Jeff Landry in May and became Act 246.

Its impact has already been felt throughout the state. Hospitals have changed their protocol for how they handle the drugs now that they are controlled substances.

Misoprostol, which is often used to help stop or prevent postpartum hemorrhage, was brought out carts of obstetric hemorrhage and stored outside the labor and delivery rooms in locked password-protected compartments as doctors perform exercises to time what delays mean for bleeding patients. Outpatient reproductive care procedures were also affected, as reported by patients it’s hard to fill prescriptions and local pharmacies change whether they dispense the drugs.

“Act 246 harms patients who need misoprostol or mifepristone to treat their physical conditions, as well as medical professionals who seek to provide timely, appropriate, and compassionate care,” the lawsuit says.

In the lawsuit, the plaintiffs argue that a postpartum hemorrhage is as “severe and dangerous as a gunshot wound,” but that drugs such as epinephrine and lidocaine are readily available to treat gunshot wounds and are not controlled dangerous substances.

The Birthmark Doula Collective is a new opponent of the law. The New Orleans-based organization provides pregnancy, birth and postpartum services with a focus on marginalized communities. Louisiana ranks among the worst states for maternal mortality and morbidity, with black women at disproportionate risk of dying from complications related to childbirth.

While doulas cannot prescribe or administer misoprostol to their clients, the lawsuit states that Birthmark is concerned that Act 246 will affect the quality of care for their clients. They are also concerned about how delays in accessing misoprostol will increase “trauma and the danger of postpartum haemorrhage.

“Birthmark’s customers are prevented from asserting their rights because patients, for example, cannot go to court to challenge a law while hemorrhaging,” the lawsuit says.

Nancy Davis and Kaitlyn Joshua both became reproductive health advocates after being denied care during pregnancy under Louisiana’s abortion ban.

After her fetus was diagnosed as developing without a skull, Davis said she was denied care in Louisiana and had to travel to New York to have an abortion.

When Joshua went to two hospital emergency rooms in the Baton Rouge area bleeding from a miscarriage, she said she was denied care. Joshua shared her story on stage at the Democratic National Convention in August, and both she and Davis have traveled the country telling their story during Vice President Kamala Harris’ presidential campaign.

Dr. Emily Holt, a New Orleans family physician, is suing on her own and on behalf of her patients. She recently opened her own clinic and planned to dispense misoprostol and mifepristone on site, but does not have a controlled substance license.

In the lawsuit, Holt claims that it “will likely be costly and administratively burdensome for her small clinic to comply with the necessary protocols.”

Kaylee Self, a Shreveport pharmacist involved in the lawsuit, is suing on behalf of her business, her clients and as a pregnant woman. The lawsuit includes her concerns about delays in care if she needs access to misoprostol during pregnancy or childbirth. As a pharmacist, Self claims Act 246 will force her to spend more time dealing with compliance and legal requirements rather than filling prescriptions for patients.

In an interview, Schilling said that because controlled substances are also closely monitored, it could lead to criminal consequences for patients who follow their treatment plans with a legal prescription. In particular, patients taking misoprostol to prevent ulcers take 100-200 micrograms four times a day, an amount that could flag the patient for further investigation.

“When faced with any increase in criminalization, (it often) falls disproportionately on black and brown people, and Louisiana has a long history of that,” Schilling said.

Illuminator Louisiana is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. The Louisiana Illuminator maintains its editorial independence. Contact editor Greg LaRose with questions: [email protected]. Watch the Louisiana Illuminator Facebook and X.