Fifth Circuit Hears Arguments in Mississippi Admitting Privileges Case


The question of the constitutionality of Mississippi’s anti-choice admitting privileges law is back before the U.S. Court of Appeals for the Fifth Circuit as a three-judge panel hears arguments in the fight to keep Mississippi’s last remaining abortion clinic open.

Signed into law in April 2012, HB 1390 mandates that any physician performing abortions in the state have admitting privileges at an area hospital. The law is similar to measures passed in Texas, Wisconsin, and Alabama. Following the lawsuit brought by the Center for Reproductive Rights on behalf of the Jackson Women’s Health Organization and Dr. Willie Parker, the law was partially blocked in July 2012 and later fully blocked in April 2013. The state has asked the Fifth Circuit to overturn that decision, while challengers argue the law should remain permanently blocked.

The Jackson Women’s Health Organization has been the sole clinic offering abortion care in Mississippi since 2002. The next nearest clinics for Mississippians are about three hours away, across state lines in places like Alabama, which subjects anyone needing an abortion to a mandatory 24-hour waiting period. Alabama also recently passed a hospital admitting privileges law of its own that threatens to close three of the five remaining clinics in that state. A trial on the Alabama admitting privileges law is scheduled to begin in federal court on May 19.

So far, the Fifth Circuit has upheld the constitutionality of state hospital admitting privileges requirements, ruling in March that a similar Texas provision did not create an undue burden on abortion rights, despite the fact that after its implementation massive clinic closures swept the state, leaving an entire 400-mile stretch of the Rio Grande Valley without an abortion provider.

This time, the Fifth Circuit will consider whether the state creates an undue burden on abortion rights when it passes a law that has the effect of closing every clinic in the state.

“The devastating impact of this unconstitutional law couldn’t be clearer. If it is allowed to take effect, Mississippi will become the first state since Roe v. Wade without a single clinic offering safe, legal abortion care,” said Julie Rikelman, litigation director for the Center for Reproductive Rights, in a statement. “This is a blatant violation of women’s constitutional rights and an imminent danger to their health and well-being. We are hopeful that this court, like the district court that blocked the law, will continue to protect Mississippi women’s ability and constitutional right to safely and legally end a pregnancy without having to cross state lines.”

The Fifth Circuit is not expected to issue a ruling for several months.

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  • red_zone

    Those who are railing against this clinic are going to have a very hard time validating their claims that this won’t create a hardship for women in poverty. The Fifth Circuit BETTER ensure the clinic stays open. Still, i can see this headed for the Supreme court.

    • blfdjlj

      The Fifth Circuit is unfortunately the nation’s most conservative court… it upheld a similarly ridiculous Texas law. The problem with SCOTUS is that “swing” Justice Kennedy is vehemently anti-abortion, and he has only once voted to overrule an abortion restriction. If this (or Texas’) case reached the Court, you would probably have Kennedy upholding the restriction, while still technically endorsing Roe v Wade. Such a ruling would have the ripple effect of making such laws passable throughout the country (even in places that struck them down, like Wisconsin) and in effect eliminating legal abortion throughout vast swarms of the nation.

      • red_zone

        Somehow, though, i doubt the greater body public-namely women-would stand for it and make it abundantly clear that such a ruling won’t be tolerated in any respect.

        Unless they are willing to apply such laws to the richest, who can fly to Mexico or Canada to get an abortion, they won’t be able to hold such restrictions in place for very long at all. It will backfire big time when it’s proven (and it will) to be more damaging in the long term

        • blfdjlj

          Of course, wealthier women could always go to a different state, that will never be the problem. The point is that when SCOTUS issues a ruling, it is almost never overturned (ironically this is why Roe v. Wade was itself upheld in 1992). And once a state passes an abortion restriction, no matter how restrictive, it is almost never repealed (very rarely do pro-choicers control all branches of the state government). This is why Texas will soon have just 6-8 abortion clinics, and Mississippi might have none. My fear is that if Mississippi becomes safe abortion-free, the forced birthers will start pushing relentless attacks on other states which could be receptive.

          • red_zone

            Somehow, i get the feeling that could very well change if the impact is shown to have an overwhelmingly negative effect. Especially if the state laws are in direct violation of federal law.

          • blfdjlj

            We can take a look at Virginia. Abortion opponents passed restrictions through sneak attacks when no one was watching, and AG Cuccinelli’s zealotry made it likely that most clinics would close under the “safety” regulations. Terry McAuliffe made this a major campaign issue, and his ticket swept all statewide offices. He decided to grandfather the existing clinics, so the wave of closures has stopped for now. The state’s Senate voted to repeal the infamous transvaginal ultrasound law, but it stalled in the ridiculously gerrymandered House (where the GOP has a 68-32 majority). This shows that while elections do have consequences, it is often hard to undo destructive laws.

            Similarly, if Wendy Davis were to pull off a stunning upset and become Governor of Texas. it would be a welcome development, but HB2 would probably still remain in effect, and the gerrymandered legislature would probably still try to throw in some abortion restrictions. Only the federal Women’s Health Protection Act (ban on medically unnecessary restrictions) could significantly alter the calculus, but that law is DOA for the foreseeable future.

          • red_zone

            If the GOP loses seats this year, we might actually see some actual WORK done.

            I hope Wendy Davis is made governor. She really shows the chops and the guts. Though honestly, you would THINK that medically unnecessary restrictions would be a no-brainer; if it’s not needed, then don’t do it. but nope. It needs to be spelled out.

          • blfdjlj

            The three most vulnerable governors are LePage (ME), Scott (FL) and Corbett (PA). With some luck Kasich (OH) and Snyder (MI) can be taken out as well. The problem though is that the legislatures are hopelessly gerrymandered, and the forced birthers will probably still push for their ridiculous laws one way or the other. In Michigan for instance, Snyder once did the right thing and vetoed an abortion insurance coverage ban, so the proponents found a back door – they collected signatures for a ballot initiative, but then had the legislature vote to enact it, bypassing both voters and the governor.