Dear Mr. McCay –

I write in opposition to the Louisiana Department of Health’s proposed regulation regarding health conditions under which a fetus is deemed “Medically Futile.”

Health care providers in Louisiana must be able to use their best medical judgment when caring for pregnant people in our communities. They must be able to treat patients based on the unique circumstances of each person’s situation. Appropriate medical care cannot be confined to a strict list of conditions.

The proposed regulation is also unnecessarily narrow and does not encompass the full range of health conditions that may arise during pregnancy which could render a fetus incompatible with sustaining life. The list does not come close to covering every condition or circumstance that may arise during pregnancy where a fetus is “medically futile.”

In addition, the last part of the list that LDH calls a “catch-all” does nothing to solve this problem because it is unworkable, and far from a catch-all, it only narrowly applies to certain kinds of anomalies. This exception needs to be expanded to cover a range of conditions, including ones that are genetic, anatomic, infectious, and metabolic, and not just ones that are congenital or chromosomal. While most people will have healthy pregnancies, some will experience illnesses or conditions where pregnancy can cause serious problems. Providers must be able to determine when a fetus is incompatible with life and/or an abortion is necessary without having to wait for a pregnant person’s condition to worsen and without having to jump through unnecessary hurdles that delay life-saving medical care.

Furthermore, the regulation does not take into account the reality of medical care in Louisiana. Many providers and patients live in geographically isolated areas. We have a well accounted for shortage of reproductive health and other health care providers. It may not always be possible to have another provider weigh-in and certify the condition. The regulation should be revised to clarify that telehealth is permissible to obtain the certification.

I am also very concerned that the regulation does nothing to clarify when providers are able to provide necessary abortion care under the state’s abortion ban and avoid criminal liability. Providers cannot be certain, for example, that they will not face criminal penalties for simply agreeing with another doctors’ diagnoses that one of the conditions listed is applicable or for agreeing that a condition not explicitly listed has resulted in a fetus that is “medically futile.” Providers must be free to use their unique expertise to provide care to their patients without medically unnecessary restrictions, without delay, and free from the fear of criminalization.

It is already unacceptable that abortion care is banned in Louisiana with only a few exceptions and the proposed regulation does nothing to provide the clarity necessary to ensure patients can get the care they need. LDH should take the necessary steps to revise this proposed regulation. As drafted, it is unnecessarily narrow, interferes with the patient-provider relationship, and only serves to add to the uncertainty and confusion facing providers in this moment.

I am also very concerned that Medicaid in our State does not cover abortions in these situations, leaving those who are most vulnerable with either having to pay exorbitant hospital bills or travel out of state to get the care they need. LDH must take steps to remedy this problem and ensure that Medicaid will cover abortions that are deemed “medically futile.”

Sincerely,