SADOW: The Law Is Settled, But The Louisiana Abortion Fight Isn’t Over

Last week, the Louisiana Supreme Court put an end to debate over the constitutionality of the state’s abortion statute. That doesn’t mean more can’t be done to protect the unborn.

The several parts of statute that address regulation of the practice, tied together in Act 545 of 2022, make abortion illegal unless to save the life of the mother or other unborn child or that the unborn child hasn’t or couldn’t survive. Criminal penalties exist for people who physically intervene to perform abortions declared illegal.

However, the law doesn’t affect people and entities domiciled in Louisiana from aiding and abetting the performance of abortions illegal under state law if not in Louisiana. For example, some companies say they will pay for pregnant employees to travel out of states that make illegal abortions under their circumstances to have these, and other organizations say they will broker clients in one state to abortuaries in others.

Some legislation has been offered to tackle this issue. In Texas, some legislators wanted to ban from state commerce businesses that offered to facilitate out-of-state abortions, but that gained no traction. Republican Florida Sen. Marco Rubio filed legislation to deny certain income tax deductions for expenses related to the facilitation, but that seems unlikely to pass this year. Certainly, this is an approach Louisiana could take relative to its state income taxation.

Texas also offers a model that could be employed against facilitators, with its civil suit law passed last year that allows citizens to sue those involved in abortion, an approach also taken by Oklahoma this year. However, the novel approach taken is cumbersome and it may not stretch far enough to include facilitators, as no court has pondered yet these questions.

Yet another Oklahoma statute might pinpoint discouragement of facilitation but not to cause large commercial disruption. While the state passed legislation this year to implement a ban on abortion similar to Louisiana’s. it relied on a 1910 law that makes “Every person who administers to any woman, or who prescribes for any woman, or advises or procures any woman to take any medicine, drug or substance, or uses or employs any instrument, or other means whatever, with intent thereby to procure the miscarriage of such woman” subject to criminal penalties.

At its broadest, this means even brokering a female with an out-of-state abortuary becomes a criminal act. That is a bit much, but there’s no reason Louisiana couldn’t come back with a law restricting this focus a bit, so that it would require under criminal penalty for any domiciled person or entity who funds expenses to travel out-of-state for an abortion that would be illegal under Louisiana law to report that and pay a fee to the state equal to the cost of the subsidization. This would make those who wish to import their ideology into their business dealings or operations to pay for the privilege and this might save a few lives in the process.

Lawmakers should consider all of the above as soon as possible. If women who want to kill their unborn children without good reason and those who would aid them are determined to do it outside of Louisiana, state government has no legal recourse to stop them. But it can do more to discourage them and to encourage life.

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