A federal appellate court has blocked a Mississippi law from being enforced against the state’s lone abortion clinic, saying the state cannot put an “undue burden” on women by forcing them to travel out of state to get the procedure.
The 2-1 ruling by the 5th Circuit Court of Appeals saves the Jackson Women’s Health Organization, the state’s only abortion clinic, from requiring their abortion doctors to get hospital-admitting privileges.
However, it is also limited to the current law and current parties.
Writing for himself and Judge Stephen A. Higginson, Judge E. Grady Jolly said the Supreme Court has determined that women have a constitutional right to choose abortion, so “the ultimate issue” is “whether the State of Mississippi can impose a regulation that effectively will close its only abortion clinic.”
State officials argued that their hospital-privileges law was constitutional and Mississippi women would still have a right to abortion even if they had to travel a few hours to a neighboring state.
The two judges rejected that argument, saying Mississippi “may not shift its obligation to respect the established constitutional rights of its citizens to another state.”
Not only would that place an undue burden on women seeking abortions, but it would “disregard a state’s obligation under the principle of federalism — applicable to all fifty states — to accept the burden of the non-delegable duty of protecting the established federal constitutional rights of its own citizens,” Judge Jolly wrote.
Judge Emilio M. Garza dissented, saying “no state is obligated to provide or guarantee the provision of abortion services within its borders.” Instead, the right protected in Roe v. Wade is for a woman “to decide to terminate a pregnancy free of undue interference by the state,” he wrote.
Moreover, Judge Garza wrote, Mississippi’s hospital-privileges law is as rational as the Texas law that was recently upheld by another panel of the 5th Circuit. In the Texas case, the 5th Circuit ruled that even if some clinics closed because they couldn’t meet the new hospital-privileges standard, “an increase of travel of less than 150 miles for some women is not an undue burden.”
The attorney general’s office said Tuesday night that the state was still considering its next step and did not rule out an appeal.
“This measure is designed to protect the health and safety of women who undergo this potentially dangerous procedure, and physicians who provide abortions should be held to the same standards as physicians who perform other outpatient procedures,” Gov. Phil Bryant said in a statement.
In Mississippi, Dr. Willie Parker, who flies in regularly to perform abortions at the Jackson clinic, recently told a Senate hearing that he has tried in vain to obtain hospital-admitting privileges, but has not been accepted. A second clinic doctor, whose identity was not disclosed, cited the same dilemma.
Tuesday’s ruling upholds a lower-court ruling, which blocked Mississippi officials from enforcing the hospital-privileges law on the Jackson clinic. The appellate court made clear that their ruling is limited to the current law and as-applied to parties in the current case; it clarified that it was not saying that any law that might lead to the closing of the Jackson clinic was “per se unconstitutional.”
The Center for Reproductive Rights (CRR), which represented the Jackson clinic plaintiffs, said the ruling “ensures women who have decided to end a pregnancy will continue to have access to safe, legal care for now in their home state.”
“But there is still only one clinic in the entire state, and it is still threatened by a law advanced by politicians over the opposition of respected medical associations, with the sole intent of closing that clinic permanently,” warned Nancy Northup, president and chief executive of CRR.
• Cheryl Wetzstein can be reached at cwetzstein@washingtontimes.com.
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