5th Circuit Provides Glimpse Into Dark Secrets of Abortion Industry

By Benjamin Clapper
Executive Director, Louisiana Right to Life

Hope Medical Group for Women, the Shreveport abortion facility at the center of the upcoming U.S. Supreme Court case, June Medical Services v. Gee, has strived for years to keep the dark secrets of the Louisiana abortion industry shrouded by federal court protective orders.  But on Wednesday, Nov. 25, the day before Thanksgiving, Fifth Circuit Court of Appeals Judge Jennifer Walker Elrod may have pulled the curtain back just a bit on these secrets. It is time the curtain is torn down completely.

In the decision issued the day before Thanksgiving, the Fifth Circuit issued a procedural ruling regarding Louisiana’s petition for the unsealing of court documents in a separate case brought by the same Shreveport abortion clinic. Louisiana argued that Obama-appointed judges at the federal district court had issued an overly broad protective order that possibly hides criminal conduct from the public, and prevents them from making criminal referrals and from bringing the information to the attention of the U.S. Supreme Court in the related case that will be argued March 4, 2020. 

The Fifth Circuit denied the mandamus petition on technical grounds, but indicated that Louisiana may file an appeal to unseal the documents through an expedited review.

In the decision, however, Judge Jennifer Walker Elrod issued a concurring opinion hammering the district court’s protective order.  In addition, Judge Elrod’s concurrence reveals some of the potentially illegal activity in question, including the possibility live births occurring at abortion facilities and unreported statutory rape.  Who knows what else is found in the sealed documents, but it is time the public, and perhaps most important, the nine justices in Washington D.C., see it all.

Judge Walker begins by stating “the district court’s protective order is remarkably overbroad.”  The protective order absurdly seals documents readily accessible online to anyone with an Internet connection.  Here it is in Judge Walker’s own words:

“The district court sealed a New York Times Op-Ed written by the president of the organization representing the plaintiffs, a Christian Science Monitor article that identified the plaintiff clinic and photographed and named clinic staff, a Rolling Stone interview, an obituary published in the Shreveport Times, and press releases from the Center for Reproductive Rights. All of those public documents are accessible online today.”

In case you are wondering, here, for your own eyes, are the links to those websites the District Court Judges felt worthy of protection:

In addition, and more concerning, the protective order seals “pleadings in state and federal courts, as well as an order entered by a United States district court.”  Contained within these documents is critical information that, as Louisiana’s Attorney General Jeff Landry states, is essential to both law enforcement and the Supreme Court in its review of the upcoming case, June Medical Services v. Gee.  But as Judge Elrod states, even the Supreme Court cannot review the documents:

“On its face, the protective order prohibits the petitioner from filing these documents with the Supreme Court, even if they are kept under seal.”

Fortunately for the public, Judge Elrod provides a glimpse into the materials hidden within the protective order.

From the concurrence, Elrod writes,

“The document of greatest interest to the state is the deposition of plaintiff-physician Doe 2.  According to Louisiana, Doe 2 testified during his deposition that another Louisiana abortion provider, Doe 5, violates the standard of care for second-trimester abortions. Doe 2 also testified that the standard of care for second-trimester abortions is dilation and evacuation. Yet Doe 2 also testified that Doe 5 performed induction abortions through 19 weeks of gestation. Louisiana points out that Doe 2 testified that a 19-week fetus delivered intact ‘can show signs of the heartbeat and rudimentary movements’ and that Doe 2 had personally experienced a live birth between 14 and 15 weeks. Doe 2 stated that with the labor induction method, such live births are ‘certainly a possibility.’ A licensed physician violating the standard of care is directly relevant to whether that physician adequately represents the interests of his or her patients. That question is relevant to the petitioner’s challenge to third-party standing in June Med. Servs. L.L.C. v. Gee, 905 F.3d 787 (5th Cir. 2018), cert. granted, 140 S. Ct. 35 (U.S. Oct. 4, 2019) (mem.) (No. 18-1460) (“June I”), a case involving many of these same parties, currently before the Supreme Court. Yet the petitioner is unable to submit this deposition to the Supreme Court in June I because of the district court’s protective order in this case. Whether a physician is violating the standard of care is also a matter of public safety, which the right of public access to court records seeks to vindicate.”

In this section, Judge Elrod’s reveals a sealed deposition in which one abortionist, Dr. Doe 2*, claims that another Louisiana abortionist, Dr. Doe 5**, is inducing labor on women during the second trimester in order that the baby would die upon birth due to the child’s supposed inability to live outside the womb. However, Elrod writes that Doe 2 stated that this type of procedure in the second trimester is outside the standard of care and a live birth is “certainly a possibility.”  In fact, Elrod states that even Doe 2 had experienced a live birth between 14 and 15 weeks! If a baby is born alive during an abortion, the requirements of Louisiana’s Born-Alive Infant Protection Act (RS 40:1061.12) would take effect, and medical care would have to be provided to the baby outside of the womb, even if only for a short period of time.

Which brings us to some critical questions….

  1.  In Doe 2’s situation when he experienced a live birth between 14 and 15 weeks, did he provide medical care to the baby?
  2. Is Doe 5 providing medical care to any babies that do live outside of the womb, even if just for a short period of time?

Remember, Doe 2 is an abortionist himself, and even he states that this practice by Doe 5 represents a departure for the standard of care within the abortion industry.  At the very least, the Louisiana Department of Health and the Louisiana Board of Medical Examiners must have access to this information to investigate. If this information is true, Doe 5 should never perform another abortion in Louisiana.

But remember, law enforcement, and even the Supreme Court, cannot review this information due to these draconian protective orders.

The same deposition, Judge Elrod continues, contains more disturbing information, including potentially illegal activity including the covering up of statutory rape by Doe 2.

“Louisiana also argues that the same deposition may provide support for the proposition that Doe 2 committed crimes in connection with his abortion practice. According to Louisiana, in one incident, Doe 2 may have failed to report the forcible rape of a fourteen-year-old girl. Cf. La. Stat. Ann. § 14:403 (requiring mandatory reporters to report sexual abuse of a minor). In another, Louisiana proffers that Doe 2 may have knowingly performed an abortion on a minor without parental consent or judicial bypass. Cf. La. Stat. Ann. § 40:1061.14. Louisiana also contends that Doe 2 may also have failed to maintain medical records, in violation of state law. Cf. La. Stat. Ann. § 40:1061.19.”

Hope Medical Group, together with these federal judges, is hiding information about statutory rape and unauthorized abortions on minors from law enforcement.  What else are they hiding? Louisiana’s Attorney General needs to be able to refer these findings to law enforcement for action.

Hope Medical Group and its abortion attorneys in June Medical Services v. Gee argue that they are acting in the best interest of women in general.  But these documents sealed in secrecy paint a different picture. If they are acting in the interest of women, why are they hiding this information from being released to law enforcement? 

The Supreme Court, law enforcement, and the public should access to this critical information.  The reality of the abuses of the abortion industry should not be hidden behind the robes of federal court judges any longer.

* The identity of these abortionists remains hidden as well through the court protected orders.

** Public court records from 2014 show that Doe 5 was at that time performing abortions in Baton Rouge at Delta Clinic and in New Orleans at Women’s Health Care Center.