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Why the 5th Circuit Won’t Be Shutting Down Mississippi’s Last Abortion Clinic

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.

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Photo credit: The Last Clinic

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122 comments

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4:25PM PDT on Jul 28, 2014

We need those clinics. Politicians/Pro-Lifers should not be allowed there.

8:41AM PDT on May 2, 2014

MILLIONS of people in the state (this one state?) caught in unintended or unwanted pregnancies? At that rate it seems more than reasonable that "they" do little else with all their time.


3:04AM PDT on May 2, 2014

Since the so called Pro Life radicals couldn't shut down abortion clinics with yelling and murder, they've enlisted arch conservative state legislatures to promote their agenda. Hopefully the higher courts will stop this kind of assault to a woman's right to choose.

8:11PM PDT on May 1, 2014

Thanks for the information and for sharing.

10:35AM PDT on May 1, 2014

Debora J.
“Charlene, I really have to wonder about many of the people who are "anti-choice" advocates. They are pushing for "personhood" for the fetus and all, trying to make it illegal to abort a fetus, even if it is not sustainable or unwanted. Almost all of them are against the ACA, and giving that child health care to keep it healthy.”

that because in their pea brains if a woman has an unwanted pregnancy she must be punished. It doesn't dawn on them that they're actually punishing the child by refusing to provide for its needs.

I have a question for the anti-choice folks, is the 'only' time or reason you have sex is for the sole purpose of procreation? otherwise you abstain?

1:31AM PDT on May 1, 2014

Noted. Thanks

9:23PM PDT on Apr 30, 2014

To Artem V.: This is not a criticism, as much as an observation.
Perhaps, your vision of sex is different than most. Sex is a natural, positive act, usually performed by two people. Sometimes, it is planned, but most often it is spontaneous.
Generally speaking it is performed for pleasure, not procreation.
I have never, nor will I ever, do that much planning for a great performance.
Your idea of sex does not sound like much fun, but, then that is only my reasoning, and I am not you.

Whoever told you that abortion was murder, gave you incorrect information.
Abortion is a fact of life, and has been practiced since ancient times. What a woman carries in her body, is called a fetus and is not a baby until birth.
There is absolutely no reference to it in the bible, if you have read this male orientated book, you would know this. Consequently, I suggest to you that some 'male persons' decided that abortion was a sin and/or wrong. It certainly, did not come from the mind of a female.

Gee, I wonder why that is !

8:39PM PDT on Apr 30, 2014

Charlene, I really have to wonder about many of the people who are "anti-choice" advocates. They are pushing for "personhood" for the fetus and all, trying to make it illegal to abort a fetus, even if it is not sustainable or unwanted. Almost all of them are against the ACA, and giving that child health care to keep it healthy.

8:35PM PDT on Apr 30, 2014

Artem V. - not only is your comment "Sex must be planned and reasoned, so that no need for abortion may ever emerge. Abortion is murder, except for the cases when it is the matter of life and death. " incredibly naive, it's condesending as h*ll. Sex is usually not planned - not even in a marriage. When it IS planned, it's usually planned by only ONE of the pair, and in some cases, such as rape (stranger AND date), not even wanted. Of pregnancies that end in abortion, many are ended because there's something wrong in the pregnancy - illness or other issue with the mother, possible medical issue with the fetus. Many of the pregnancies are indeed unwanted, but very few women use abortion as birth control. (That's something your anti-abortion movement pushes that's just plain wrong.) The main difference between Pro-Choice and Anti-Choice is that Pro-Choice people believe that the way to end abortion is not through legislation, but by providing education and reliable birth control (cheap or free) to REDUCE the need for abortion. Emergency contraception for cases of rape help reduce the need as well. If a woman still has a pregnancy that is to end in abortion (failure of birth control, medical problems with either mother or child etc), that abortion needs to be available to give her a safe procedure rather than going back into the backroom with a coat hanger. I think in cases like Texas, you are also missing the obvious - Rick Perry gets his income from surgical clinics,

5:51PM PDT on Apr 30, 2014

:(

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