Louisiana sneaks a scheme to ban all abortions onto the ballot


It could be devastating if the state succeeds.

Abortion rights have been front and center of late because there's now a 6-3 conservative majority on the Supreme Court. However, abortion rights are also on the ballot in 2020. 

Much of the 2020 election focus has been on Colorado's ballot initiative that would ban nearly all abortions after 22 weeks. But Louisiana also has a ballot measure that has not been as high-profile but could profoundly limit abortion rights in the state. 

Louisiana's anti-abortion ballot measure asks voters, "Do you support an amendment declaring that, to protect human life, a right to abortion and the funding of abortion shall not be found in the Louisiana Constitution?" If the measure passes, it would add language to the Louisiana state constitution stating "nothing in this constitution shall be construed to secure or protect a right to abortion or require the funding of abortion."

Louisiana wouldn't be the first state to take this approach. Alabama and West Virginia already have similar constitutional provisions. Enshrining this sort of anti-abortion language in a state constitution has several purposes. First, it effectively cuts off any state-level constitutional challenge to the law. Louisiana state courts would be prohibited from relying on state constitutional provisions, such as due process, to determine that abortion is permissible and constitutional. 

Additionally, if the federal courts overturn Roe v. Wade and leave the availability of abortion up to the states, there would be no constitutional or judicial system pathway to ensuring abortion remained legal in the state. Only the Legislature would be able to decide. Worst of all, the proposed constitutional amendment seems to provide no exceptions for people seeking abortions because of rape or incest. 

In Louisiana in particular, this sort of measure is unnecessary. The state already severely restricts abortion access, having enacted 89 abortion restrictions in the last several decades. The state already requires mandatory in-person counseling that the Guttmacher Institute, which researches abortion policy, says is "designed to discourage the patient from having an abortion." There's also a 24-hour waiting period, and people are required to have an ultrasound before having an abortion. Telemedicine abortions are prohibited, and abortion is almost entirely illegal after 22 weeks. 

Louisiana's most recent effort comes mere months after the Supreme Court ruled against the state in June Medical v. Russo. In that instance, the state had enacted an admitting privileges law that was the same wording as a Texas law struck down by the court four years prior. 

Some of the state's leading Democrats oppose abortion. Twenty-three percent of Louisiana residents oppose abortion in all cases, the highest in any state, and only 34% think it should be legal in most instances. With that, it's quite possible the ballot measure will pass, and abortion access in Louisiana will become even more tenuous.

Published with permission of The American Independent Foundation.