American Journal of Law & Medicine

Denying Abortion Providers Access to a Patient Compensation Fund Is Not Unconstitutional - K.P. V. Leblanc

The United States Court of Appeals for the Fifth Circuit unanimously held that a Louisiana statute (2) which denies abortion providers access to a patient compensation fund (3) does not violate the Fourteenth Amendment Due Process Clause or place an undue burden on a woman's right to choose to have an abortion. (4)

Louisiana Revised Statute section 9:2800.12 (the "Statute") affects an abortion provider's ability to benefit from the Louisiana Patient Compensation Fund (the "Fund"), which was created by the 1975 Medical Malpractice Act to both compensate victims of medical malpractice and protect providers. (5) All licensed and certified health care providers in Louisiana are eligible to participate in the Fund, the benefits of which include a cap on a provider's personal medical malpractice liability and access to an advisory panel for medical malpractice pre-litigation consults. (6) The Fund is administered by the Patient's Compensation Fund Oversight Board (the "Board") which, among other duties, determines whether a health care provider may participate in the Fund. (7) The Statute only limits Fund participation by noting that a physician is liable for "any damage occasioned or precipitated by [an] abortion" (8) and that "[t]he laws governing medical malpractice or limitations of liability thereof provided in [the Medical Malpractice Act] are not applicable to this Section." (9) Thus, the Statute expressly excludes abortion-related procedures from coverage under the Medical Malpractice Act, and effectively denies abortion providers the benefits of the Fund.

In July 2007, the Board refused to allow review of an abortion patient's medical malpractice claim, stating that the patient and provider were not eligible to benefit from the Fund. (10) A group of abortion providers subsequently sued to enjoin the Board from preventing abortion-related claims from being covered by the Fund. (11) These plaintiffs claimed that by precluding abortion-related claims from coverage, the Statute was unconstitutionally vague and in violation of the Equal Protection and Due Process protections of the Fourteenth Amendment for both patients and providers, and requested declaratory and injunctive relief. (12) The District Court for the Middle District of Louisiana granted the defendants' motion to dismiss on Eleventh Amendment grounds. (13) The Fifth Circuit then reversed and remanded the case to the district court. (14)

On remand, (15) the plaintiffs made three central arguments. First, they argued that the Statute should be void for vagueness under the Due Process Clause as it "fails to provide adequate notice to . …

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