Why the 5th Circuit Won’t Be Shutting Down Mississippi’s Last Abortion Clinic
The state of Mississippi has just one abortion clinic left, and that clinic has been on the verge of closure for years. Mississippi Governor Phil Bryant has made no qualms about his goal to make the state “abortion free” nor did he, or other anti-abortion activists, try in the least to hide their motives when it came to passing a bill in 2012 that would make it impossible for the clinic to stay open.
Now, that law, which has never been fully allowed to go into effect, is being reviewed by the 5th Circuit federal court — the same circuit that ruled not too long ago that an identical requirement for abortion clinics in Texas was completely constitutional.
However, in this case, the Mississippi version is likely going to stay blocked. How? Because we are finally about to run up to the absolute bare minimum standard when it comes to what does it mean for abortion to be “legal.”
The admitting privileges requirement in Texas HB2, which the 5th circuit decided was constitutional, and the admitting privileges requirement for Mississippi’s HB 1390 are almost exactly the same. Both state that a clinic should not be allowed to remain open if the doctor performing abortions does not have admitting privileges to a nearby, local hospital in case there is a complication with the procedure and the patient requires follow up. Both, of course, are medically unnecessary since: 1) a hospital would never refuse to treat a patient; 2) a patient may have already gone back home and found a hospital closer to her that the doctor does not have privileges with, especially in a medical emergency; and 3) abortion in early stages rarely has complications, especially ones that require hospitalization.
Regardless of all of these facts, states continue to pass admitting privileges laws as an alleged precaution to protect “patient safety,” when in reality it is meant to close the clinic because they cannot get access to hospitals who do not want to be indirectly associated with elective abortion. In Texas, that means shutting down as many as 30 clinics, leaving just a handful still available to the millions of people in the state who will experience an unintended and unwanted pregnancy. In Mississippi, that would mean that the only and final abortion clinic would be shuttered.
That’s the difference, and the reason that the 5th Circuit will allow Jackson Women’s Health Organization to stay open, and will elect to keep HB 1390 blocked. By allowing HB2 to go into effect, the court ruled that yes, pregnant people would find it more difficult to get an abortion in the state (and by more difficult, they mean women would have to travel hundreds of miles, ratchet up massive financial expenses, wait weeks for an opening and miss work, find child care, and otherwise over extend themselves in the hopes of still getting a legal, safe procedure), but it is still officially both legal and accessible. Hence, it’s not an “undue burden” to accessing abortion.
If Mississippi’s clinic were to close, that would no longer be the case. Mississippi would become the first state in the country with no official place to obtain a termination, ending legal abortion there for good. It is that standard, as minimal as it is, that would then force the courts to state that HB 1390 was in fact an undue burden. Legal, public abortion would simply no longer exist in Mississippi.
The courts are already aware of this issue, and have danced around it to avoid making a ruling. When the bill first became law, U.S. District Judge Daniel P. Jordan III didn’t block the law itself, but ruled that the clinic could not be charged for not obeying it, while he allowed them additional time to try to obtain privileges. It was only later when all hospitals denied the requests that the bill moved its way through the court system, as the department of health sought to revoke JWHO’s license.
The argument the 5th is likely to embrace is simple. Admitting privileges on their own are not an undue burden. Admitting privileges that close almost every clinic in the state are not an undue burden. Admitting privileges that purposefully close the last remaining provider? Well, that might finally be too far, and if the judges in the 5th don’t see it as such, there’s still a likelihood that the Supreme Court will instead.
That, sadly, is the battle that we are eventually likely to have when abortion rights finally make it to the highest court. Is abortion still “accessible” as long as there is at least one clinic in the state, and is there an obligation to ensure there is anything more than that? Once that absolute bare minimum has finally been established, it will become the standard in abortion hostile states. Roe v Wade will be effectively reversed without abortion ever officially being made illegal.
Photo credit: The Last Clinic