Abortion rights supporters got good news today, as the 5th U.S. Circuit Court of Appeals ruled that a Mississippi law requiring a doctor who provides abortions to have admitting privileges at a local hospital was found to constitute an undue burden to the constitutional right to an abortion. That ruling comes despite a decision from another panel in the 5th Circuit saying that a similar requirement in Texas was not an undue burden at all. The differing factor in the two situations is the difference between closing most clinics in a state versus closing every clinic in a state, and that fine line appears to be the breaking point of what constitutes an “undue burden.”
“Pre-viability, a woman has the constitutional right to end her pregnancy by abortion. H.B. 1390 effectively extinguishes that right within Mississippi’s borders,” wrote the majority, according to the Associated Press. That key factor — the elimination of every provider in the state — appears to have become a line that cannot be crossed. The question that we will grapple with as the next few states continue to litigate similar laws — Alabama, Texas and Wisconsin all have continuing cases still in the courts — is does it need to be the last clinic in a state in order for the burden to be too much?
According to Irin Carmon, reporter on reproductive rights issues for MSNBC, the ruling appeared so narrow merely because it was as much room as the panel had to work with, based on the already set precedent handed down by another 5th Circuit panel ruling on the Texas admitting privileges bill. “The judges’ hands were tied by the fact that a separate 5th Circuit panel had already said an identical law in Texas, where it has closed about half of the state’s abortion clinics, was constitutional even if it had no basis in medical necessity,” writes Carmon. “Tuesday’s ruling, which is on the preliminary injunction, says the law is only unconstitutional as it has been applied to the Jackson clinic. It cites a principle that states can’t violate their citizen’s rights by claiming they can go out-of-state.”
While it does cite that principle, the judges were also very clear to mention in their ruling that nothing in it sets precedent that the only clinic in a state can’t be closed for other reasons. “[T]he State argues that our analysis bars the State from enforcing any regulation against JWHO that would close the Clinic simply because it is the only clinic in Mississippi,” writes the majority. “For instance, the State argues that our opinion would preclude the State from closing the Clinic for sanitation violations because, like H.B.1390, such action would impose an undue burden on the right to an abortion by closing the only clinic in Mississippi. Nothing in this opinion should be read to hold that any law or regulation that has the effect of closing all abortion clinics in a state would inevitably fail the undue burden analysis.”
In other words, just because this law is an undue burden by shutting down the clinic, that doesn’t mean the state is required to keep Jackson Women’s Health Organization open if there are other issues, simply because it is the last clinic. That’s a detail abortion opponents are already pressing in their own analysis of the decision.
“This case is really about whether the courts will compel the State of Mississippi to allow abortion clinics to continue subjecting women to below standard care,” anti-abortion activist and Operation Rescue President Troy Newman told LifeNews. “Pregnant women are currently being treated as second-class citizens and are being denied the same high standard of care that everyone else expects. However, the Jackson Women’s Health Organization can’t and won’t raise their standards for the safety of their patients. That says a lot about their agenda, which places abortion profits above the lives of women.”
With admitting privileges no longer a means of closing the clinic at this moment (although it is inevitable that the ruling will be appealed) that means abortion opponents will be seeking another means of closing JWHO, likely through allegations of danger at the clinic. That means that anti-abortion groups that often line the sidewalk to try to monitor the people coming and going from the clinic will become even more omnipresent and invasive, violating the privacy of patients and clinic staff and providers as they seek out a way to involve authorities and charge the clinic with wrongdoing.
Luckily, a recent Jackson police department ruling will keep some of the most aggressive of these activists at bay. Sadly, with this new ruling to spur abortion opponents on, they likely won’t be hard to replace.
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