May 25, 2023 Update
On May 17, a three-person panel of judges in the New Orleans-based Fifth Circuit Court of Appeals held oral arguments regarding a Texas judge’s April decision to take mifepristone, a medication used in more than half of U.S. abortions, off the shelves by its longstanding FDA approval. The court entertained arguments from attorneys representing the group that sued to remove mifepristone from market (The Alliance for Hippocratic Medicine) and attorneys for both the Department of Justice and the makers of the drug’s generic version, challenging the decision.
The panel appeared sympathetic to the plaintiff’s arguments and is expected, though not guaranteed, to hand down a ruling that restricts if not bans access to mifepristone. The court could also impose additional limitations on abortion access. The decision is being closely watched not only for its impact on access to this drug but for its potentially broad implications for the FDA’s drug-regulation authority. The DOJ and others, including ASRM through amici (friend of the court) briefs joined by other leading medical organizations, have warned that upending a decades-old drug approval process may have a devastating impact on access to medication for any number of conditions and needs.
Regardless of how it rules (notably, there is no deadline for the court to do so), this is expected to be just another step in a prolonged appeals process that is apt to end up before the Supreme Court. A resolution could be as far as a year away and we continue to monitor and will share developments.
as of March 2023
as of October 2022
Summary of Current (and Most Recent) Abortion and Personhood Laws
- Louisiana law currently prohibits abortion, including abortion-inducing drugs, at any stage of gestation, with limited exceptions.
- The state recently enacted Senate Bills 342 and 388, which update its abortion laws following the Dobbs decision. Human Life Protection Act, La. Stat. Ann. § 40:1061, 2022 LA S.B. 342 (NS), effective June 17, 2022.
- Abortion is defined as any act with the intent to terminate a clinically diagnosable “pregnancy” with the knowledge that the termination will cause the death of the “unborn child.” Under Louisiana law, pregnancy commences at fertilization and implantation.
Potential impact of the law on and references to IVF and reproductive medicine if any
- It does not appear that current abortion restrictions in Louisiana will apply to IVF or other reproductive medicine services outside the context of a pregnancy.
- There are no explicit references to IVF and reproductive medicine services in the current Louisiana laws regulating abortion.
- The definition of abortion involves termination of a “pregnancy,” which is defined as specifically commencing at fertilization and implantation.
- Further, under Louisiana law, “unborn child” means any individual of the human species from fertilization and implantation until birth. Thus, laws protecting the rights of an “unborn child” would not apply to pre-implantation scenarios.
- “Abortion” is defined as “the performance of any act with the intent to terminate a clinically diagnosable pregnancy with knowledge that the termination by those means will, with reasonable likelihood, cause the death of the unborn child by one or more of the following means:
- “Administering, prescribing, or providing any abortion-inducing drug, potion, medicine, or any substance, device, or means to a pregnant female.”
- “Using an instrument or external force on a pregnant female.” La. Stat. Ann. § 14:87.1, 2022 LA S.B. 342 (NS).
- “Conception” or “fertilization” is defined as “the fusion of a human spermatozoon with a human ovum.” La. Stat. Ann. § 14:87.1, 2022 LA S.B. 342 (NS).
- “Pregnant” is defined as “that female reproductive condition of having a developing embryo or fetus in the uterus which commences at fertilization and implantation.” La. Stat. Ann. § 14:87.1, 2022 LA S.B. 342 (NS).
- “Unborn child” is defined as “any individual of the human species from fertilization and implantation until birth.” La. Stat. Ann. §14:2.
Penalties for violations of the applicable abortion restrictions
as of July 2022
Trigger Law Statutory Cite(s)
Does this law have a potential impact on IVF/Reproductive medicine?
Why or why not?
The definitions of “fertilization” and “unborn human being” could theoretically apply to the process of creating in vitro embryos, but the law only criminalizes activities performed upon a pregnant woman with the specific intent of causing or abetting the termination.
Does this law explicitly reference IVF, assisted reproductive technology or reproductive medicine?
- There are no explicit references to IVF or reproductive medicine services.
- As written, the law would not directly impact IVF and reproductive medicine.
Are there any penalties in this law that could apply to ART procedures?
- "Fertilization" means that point in time when a male human sperm penetrates the zona pellucida of a female human ovum.
- "Pregnant" means the human female reproductive condition, of having a living unborn human being within her body throughout the entire embryonic and fetal stages of the unborn child from fertilization to full gestation and childbirth.
- “Unborn human being” means an individual living member of the species, homo sapiens, throughout the entire embryonic and fetal stages of the unborn child from fertilization to full gestation and childbirth.
Do the definitions/terms of the trigger law apply to other areas of state code?
What is the “trigger” for this law to take effect?
- Any decision that reverses, in whole or in part, Roe v. Wade “thereby restoring” to the state the “authority to prohibit abortion”
- Adoption of an amendment to the U.S. Constitution which, in whole or in part, gives Louisiana the “authority to prohibit abortion”
Key provisions: What does the law prohibit and when does it apply?
- No person may knowingly administer to, prescribe for, procure for, or sell to any pregnant woman any medicine, drug, or other substance with the intent of causing or abetting the termination of the life of an unborn human.
- No person may knowingly use or employ any instrument or procedure upon a pregnant woman with the specific intent of causing or abetting the termination of the life of an unborn human Exceptions:
- A procedure necessary in reasonable medical judgment to prevent the death or substantial risk of death due to a physical condition, or to prevent the serious permanent impairment of a life-sustaining organ of a pregnant woman. The physician must make a reasonable medical effort under the circumstances to preserve the life of the mother and life of the unborn human being consistent with reasonable medical practice.
- Medical treatment provided to a mother which results in the accidental or unintentional injury or death to the unborn human being.
- The law shall not be construed to subject the pregnant woman cannot to any criminal conviction or penalty.
- The law does not prohibit the sale, use, prescription, or administration of a contraceptive if it is administered prior to a time when a pregnancy could be determined through conventional medical testing.