Life and the Louisiana Supreme Court:
A Dramatic Rescue Tells It All
Summary of the Louisiana Supreme Court Whitepaper
For a PDF copy of the full Louisiana Whitepaper, please click here
Louisiana, the only state where embryos are protected by law, has a strong respect for life as evidenced by the response to the Governor’s order in the wake of devastating Hurricane Katrina to save the lives of thousands of frozen embryos at a flooded hospital.
Life Issues
The stated policy of Louisiana is that “human life is of the highest and inestimable value.” A child in the womb is protected from criminal violence, has the right to inherit, and has the right to recover for injury, pain and suffering. While Louisiana has strong pro-life laws, including the most unique and restrictive laws regarding stem cell research, it is somewhat lacking in cloning, life support and the use of abortifacients.
Abortion
While the Court has not directly ruled in this area, Louisiana regulates abortions to the extent legally possible through 27 statutes and recently enacted the Human Life Protection Act which would be triggered by the overturning of Roe or a Constitutional amendment. Louisiana was the first state post- Gonzales to enact an enforceable partial birth abortion statute and has a lengthy “Woman’s Right to Know” statute. But, abortifacients including RU-486 are not regulated and Louisiana does not require parental consent for a minor, although it requires a demanding judicial hearing.
Protection of the Unborn from Criminal Violence
Louisiana law protects unborn children from criminal violence. Issues that arose in developing this law included whether it violated the double jeopardy “same evidence” test [in State v. Smith the Court found that manslaughter and feticide were aimed at different evils] and whether it could be considered murder of a “person”. Louisiana courts have recognized, as in Danos v. St. Pierre, that parents have an action for wrongful death even if their child is not born alive. But, in Wartelle v. Women and Children’s Hospital, the Court held that a child not born alive “loses” his/her personhood and therefore cannot recover for pain and suffering. Louisiana law includes prenatal neglect in its definition of neglect of a child. In Bailey v. Khoury, the Court held that a cause of action beginning while the baby was in utero would not prescribe until one year from birth. In Women’s Health Clinic v. State, involving the “Liability for Termination of a Pregnancy” tort statute, the Court found no justiciable controversy since the statute created a private right of action. In an interesting “wrongful life” case, Pitre v. Opselousas General Hospital, the Court recognized that a physician owes a duty to a child to avoid reasonably foreseeable harm even before conception.
Assisted Suicide
The Louisiana Constitution protects its citizen from euthanasia while Louisiana law condones strict antidysthanasia. State law also recognizes the fundamental right to direct medical care including withholding or withdrawing life-sustaining procedures. In In re P.V.W. the Court interpreted the Preserving the Life of Children Act [PLCA] as allowing the withdrawal of life support from a newborn with severe and irreversible brain damage. PLCA was replaced with the Protection of Terminally Ill Children Act which provides that comfort care cannot be taken from a child. The Natural Death Act provides who and by what process life-sustaining procedures, amended to include invasive administration of nutrition and hydration, may be removed. The Court has not addressed either Act. Although suicide is not a crime in Louisiana, it is a crime to assist another person in committing suicide, except for healthcare professionals following the aforementioned laws. The Court has not addressed this issue.
Healthcare Rights of Conscience
Louisiana statues protect woman from discrimination for refusing to accept or submit to an abortion as well as medical and health facilities, physicians, nurses, students, other people and employees in any social service agency from discrimination for refusal to accommodate an abortion. There are no statutes protecting pharmacists or insurance carriers from discrimination for refusing to provide or cover contraceptives or abortifacients. With respect to following life support directives, Louisiana law requires physicians and insurance companies who refuse to comply to make reasonable efforts to transfer the patient or coverage. The Court has not addressed this area.
Cloning and Destructive Embryo Research
According to Louisiana law, an in vitro fertilized human ovum over 36 hours of age is considered a juridical person entitled to all rights and protections bestowed by law. Selling of a human ovum or embryo is expressly prohibited and the farming or culturing of embryos solely for research purposes or any purpose other than utero implantation is prohibited. Although Louisiana had very strong anti-clothing laws for years, they have not been re-enacted despite vigorous debates since expiring in 2003. The Court has not addressed either issue.
Judicial Restraint
As Louisiana is a civil law jurisdiction, legislation is the primary or authoritative source of law while jurisprudence is only secondary or persuasive, with judges simply interpreting and applying the law rather than creating new laws. Even when addressing highly controversial and emotional issues and laws not supported by other states or countries, the Court defers to the wisdom and choice of the people as expressed through their legislative representatives or their vote. For example, in State v. Wilson, the Court upheld the first law in the nation to allow the death penalty for the rape of a child.* The Court is not averse to encouraging the Legislature to act as it did in State v. Peart with respect to reforming the indigent defense system, but recognizes its limits as it did in State v. Williams by holding that the Legislature’s subsequent enactment of statutory procedures for determining competency superseded the Court’s interim guidelines.
*Since the publication of the Louisiana Whitepaper, the USSC struck down this law in Kennedy v. Louisiana.
The Court
The Louisiana Supreme Court is composed of seven elected justices, one from each of the seven districts, who serve 10-year terms, unless elected to serve for the remainder of another judge’s term. Mandatory age of retirement is 70 and all judges may run for an unlimited number of re-elections until that point. The senior judge serves as Chief Justice. Under the Louisiana Constitution, the Court has jurisdiction over both law and facts in civil cases but only over law in criminal matters. The Court has appellate jurisdiction in cases where a law or ordinance has been declared unconstitutional and capital cases where the death penalty has been imposed. The Louisiana Supreme Court White Paper contains a table of biographical information for each current member of the Court.
For a PDF copy of the full Louisiana Whitepaper, please click here