Mississippi’s Only Abortion Clinic Will Remain Open

A law that would close the state’s only clinic was ruled unconstitutional Tuesday.

Pro-choice activists hold placards during a rally outside of the Supreme Court January 23, 2012 in Washington, DC. Activists on both sides of the abortion issue are rallying on the 39th anniversary of the landmark Roe vs Wade case. AFP PHOTO/Mandel NGAN 
National Journal
Sophie Novack
July 29, 2014, 12:24 p.m.

A fed­er­al Ap­peals Court has struck down a Mis­sis­sippi law that would have shuttered the state’s only abor­tion clin­ic.

In a 2-1 de­cision Tues­day, a three-judge pan­el of the U.S. Court of Ap­peals for the 5th Cir­cuit ruled un­con­sti­tu­tion­al a 2012 law re­quir­ing phys­i­cians per­form­ing more than 10 abor­tions a year to be cer­ti­fied in ob­stet­rics and gyneco­logy and have ad­mit­ting priv­ileges at a nearby hos­pit­al.

The court is the same one that up­held a sweep­ing Texas law in­clud­ing the same pro­vi­sion, which has already closed more than a third of the abor­tion clin­ics in the state since it was passed last sum­mer.

Jack­son Wo­men’s Health Or­gan­iz­a­tion, the sole clin­ic that of­fers leg­al abor­tions in Mis­sis­sippi, has two pro­viders, neither of whom has ad­mit­ting priv­ileges. The clin­ic was un­able to ob­tain ad­mit­ting priv­ileges after the law was passed, but a fed­er­al judge put the re­quire­ment on hold while the court pro­ceed­ings con­tin­ued.

Tues­day’s rul­ing af­firms the Dis­trict Court’s in­junc­tion. If the law were ul­ti­mately up­held, the clin­ic would have been forced to close, leav­ing wo­men in the state without a single abor­tion pro­vider.

The Mis­sis­sippi law is part of a wave of an­ti­abor­tion reg­u­la­tions that have closed or threatened to close large num­bers of clin­ics in sev­er­al states. However, the im­pact in Mis­sis­sippi would ar­gu­ably be the most ex­treme, as the state has only one pro­vider.

The Ap­peals Court judges cited this dif­fer­ence as reas­on for strik­ing down the law, say­ing that for­cing wo­men to travel out­side state lines to have an abor­tion con­sti­tuted an un­due bur­den on their con­sti­tu­tion­al right es­tab­lished in Roe v. Wade.

“Mis­sis­sippi may not shift its ob­lig­a­tion to re­spect the es­tab­lished con­sti­tu­tion­al rights of its cit­izens to an­oth­er state,” said Judge E. Grady Jolly, writ­ing for the ma­jor­ity. “Such a pro­pos­al would not only place an un­due bur­den on the ex­er­cise of the con­sti­tu­tion­al right, but would also dis­reg­ard a state’s ob­lig­a­tion un­der the prin­ciple of fed­er­al­ism — ap­plic­able to all 50 states — to ac­cept the bur­den of the non-del­eg­able duty of pro­tect­ing the es­tab­lished fed­er­al con­sti­tu­tion­al rights of its own cit­izens.”

Sup­port­ers of the law ar­gue it is meant to pro­tect wo­men’s health, and that in­di­vidu­als seek­ing an abor­tion could travel to an­oth­er state.

However, Gov. Phil Bry­ant has been more straight­for­ward about his in­ten­tion in sign­ing the law, say­ing he wants to “make Mis­sis­sippi abor­tion-free.”

States have the right to reg­u­late abor­tions, to the ex­tent that they do not cre­ate an “un­due bur­den” for wo­men seek­ing the pro­ced­ure, but what con­sti­tutes a bur­den is a ma­jor point of con­ten­tion.

A dif­fer­ent three-judge pan­el on the same Ap­peals Court ruled that the Texas anti-abor­tion law was con­sti­tu­tion­al be­cause there will still be some clin­ics provid­ing abor­tions in the state, al­though wo­men will have to travel far great­er dis­tances in some cases to ac­cess them.

The court views Tues­day’s opin­ion in Mis­sis­sippi as con­sist­ent with the Texas rul­ing, giv­en the dif­fer­ent cir­cum­stances.

Ad­voc­ates on both sides say a split in Ap­peals Court de­cisions — with two dif­fer­ent fed­er­al courts dis­agree­ing — would make it more likely that these kinds of abor­tion reg­u­la­tions make it to the Su­preme Court as soon as next ses­sion.

Chal­lenges to sim­il­ar laws are still pending in Alabama and Wis­con­sin.

“It’s our view that these laws are un­con­sti­tu­tion­al in any state,” said Ju­lie Rikel­man, lit­ig­a­tion dir­ect­or at the Cen­ter for Re­pro­duct­ive Rights, and the per­son who ar­gued the case against the Mis­sis­sippi law. “There’s no med­ic­al jus­ti­fic­a­tion; states should not be able to re­strict a con­sti­tu­tion­al right based on pre­text.”

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