State Fund May Have To Pay For Abortion Malpractice

In a blow to Louisiana’s effort to restrict abortions, a federal appellate court has ruled that a state-run medical malpractice fund may have to cover negligence claims against doctors who perform the life-ending procedures even though it’s forbidden by state law.

The case involves two physicians embroiled in a lawsuit for botching an abortion at a Shreveport clinic. The woman who claims to have suffered injuries during the procedure sued the doctors for negligence and the state’s medical malpractice insurance (Louisiana Patient’s Compensation Fund) refused to pay damages because Louisiana law prohibits coverage connected to abortion-related injuries.

The doctors sued the state panel in federal court and a judge ruled that the fund’s board was entitled to immunity under the 11^th Amendment, which protects states from being sued by private parties in federal court. The abortion doctors appealed and this week the New Orleans-based 5^th Circuit Court of Appeals reversed the ruling, indicating that the insurance panel may have acted unconstitutionally in refusing to cover the abortion-related claims.

Protections against federal lawsuits are based on the “legal fiction that a sovereign state cannot act unconstitutionally,” according to the appellate court’s 17-page decision. “Thus, where a state actor enforces an unconstitutional law, he is stripped of his official clothing and becomes a private person subject to suit.”

Louisiana is one of a few dozen states that restrict abortion by prohibiting the use of public funds to pay for them and banning the procedures all together in the late stages of a pregnancy. Alabama, Florida, Georgia, Michigan, North Dakota, Tennessee, Virginia and Wisconsin are among the others.

This year Louisiana’s governor signed three bills aimed at further restricting abortion in the state. Among them is a requirement that women undergo an ultrasound prior to the procedure and a measure that gives the state’s health secretary greater power to revoke abortion clinic licenses in cases of health or safety concerns. It’s obvious that Louisiana legislators don’t want a state-operated fund to pay for the negligence of doctors who perform abortions.

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