Louisiana healthcare providers are suing the state, claiming the misoprostol law is unconstitutional

BATON ROUGE, La. (Louisiana reliever– Healthcare professionals and attorneys filed a lawsuit against the state of Louisiana on Thursday, alone 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 the perinatal organization Birthmark Doulas, general practitioner Dr. Emily Holt, pharmacist Kaylee Self and reproductive health advocates Nancy Davis and Kaitlyn Joshua, both of whom were denied maternity care in the state.

“This case concerns the unconstitutional regulation of medications that people need for reasons unrelated to abortion simply because those medications can also be used for abortion,” the lawsuit said.

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

“We are seeking to have this law invalidated because it violates the Louisiana Constitution in two different 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 had not yet seen the lawsuit, “but I am confident this law is constitutional,” she said in a text message relayed through a spokesperson. “We will defend it vigorously.”

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

“In some cases, that discrimination is life-threatening,” the lawsuit reads.

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 to pass the law was inconsistent with the Louisiana Constitution because the drugs were reclassified through an amendment to a bill on forced abortion. Article III of the Constitution prohibits any amendment to a bill that is not “Germane” compared to the original version.

“The original purpose of the legislation was to create a crime of coerced abortion,” Schilling said, “which means criminalizing people who provide an abortion-producing drug to someone else without their knowledge for the illegal purpose of inducing an abortion without their permission. But the amendment regulates those drugs when (they) are prescribed and used for a perfectly valid legal purpose that has nothing to do with abortion.”

The amendments were “extremely problematic” because they were added late in the process, without any proper vetting to examine the law’s potential impact, Schilling said. The amendments were added to the bill by Sen. Thomas Pressly, R-Shreveport, during a meeting of the House Criminal Justice Committee after it passed the Senate.

“Once introduced, the amendment was passed by the committee within minutes and without any opportunity for the public or medical experts to weigh in on the appropriateness of such a drastic change to the bill or to the Uniform Controlled Dangerous Substances Law,” it reads the lawsuit. .

Pressly declined to comment for this report.

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

Its impact is already being felt across the country. Hospitals have changed their protocols for how they handle the drugs now that they are controlled substances.

Misoprostol, which is often used to help stop or prevent postpartum bleeding, has been obstetric bleeding carts removed and saved outside the labor and delivery rooms in password-protected locked compartments as doctors perform exercises to determine what the delays mean for bleeding patients. Outpatient reproductive care procedures have also been affected, as patients report difficulty filling prescriptions and local pharmacies are changing whether they dispense the medication at all.

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

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

The Birthmark Doula Collective is a newer opponent of the law. The New Orleans-based organization offers its services during pregnancy, childbirth and postpartum, 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 childbirth complications.

Although doulas cannot prescribe or administer misoprostol to their clients, the lawsuit states that Birthmark is concerned that Act 246 will harm the quality of their clients’ care. They are also concerned about how delays in access to misoprostol will increase the “trauma and danger of postpartum hemorrhage.”

“Birthmark’s clients are prevented from advocating for their own rights because, for example, patients cannot go to court to challenge a law while they are bleeding,” the lawsuit says.

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

After it was determined that her fetus was developing without a skull, Davis said she was denied care in Louisiana and had to travel to New York for an abortion.

When Joshua went to two Baton Rouge-area hospital emergency rooms 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 around the country telling their stories during Vice President Kamala Harris’ presidential campaign.

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

In the lawsuit, Holt argues 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 company, her customers and as a pregnant woman. The lawsuit includes her concerns about delays in care if she needed access to misoprostol during her pregnancy or delivery. As a pharmacist, Self Claims Act 246 will force her to spend more time complying with legal regulations and requirements than writing prescriptions for patients.

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

“When we see an increase in criminalization, it (often) disproportionately falls on Black and brown people, and Louisiana has a long history of that,” Schilling said.

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