Abortion in the South: how Mississippi ruling could affect other states

A panel of the Fifth Circuit US Court of Appeals has ruled that Mississippi can’t end-run American abortion rights by forcing pregnant women to leave the state to abort fetuses, bolstering the likelihood of a Supreme Court challenge to clarify the limits of Southern restrictions on the procedure.

In a narrow ruling that tip-toed around a previous Fifth Circuit ruling that validated a mirror-image law in Texas, the panel ruled on Tuesday, by a 2-to-1 vote, that a 2012 Mississippi law mandating that clinic doctors have admitting privileges at local hospitals deprived women of their rights, as outlined by the Supreme Court in the seminal Roe v. Wade decision.

The court held “that Mississippi may not shift its obligation to respect the established constitutional rights of its citizens to another state.” Further, the law “effectively extinguishes [a woman’s constitutional right to a pre-viable abortion] within Mississippi’s borders.”

In dissent, Judge Emilio Garza wrote that “no state is obligated to provide or guarantee the provision of abortion services within its borders.”

Most immediately, the ruling means that the Jackson Women’s Health Organization clinic will remain open. The Mississippi Department of Health reported that 2,176 abortions were performed in 2012, the lowest of any state.

The court “didn’t strike down the law itself,” constitutional law expert Matt Steffey told the Jackson, Miss., Clarion-Ledger newspaper, but “the way they ruled on [certain state arguments] essentially dooms the law.”

Nine states, nearly all in the South, now have laws patterned on the Mississippi initiative, which, as Gov. Phil Bryant has admitted, was intended to protect women but also to make Mississippi abortion-free. While the Fifth Circuit covers several states with similar laws, Tuesday’s ruling is fairly unique, since it focused on the fact that the state has only one abortion clinic.

Meanwhile, one-third of all abortion clinics in Texas have been forced to close under new admitting and inspection rules that went into effect in the Lone Star State in 2013, meaning that some women have to drive more than 100 miles to the nearest facility. That law, HB2, sparked a national debate after a much-publicized filibuster by Rep. Wendy Davis, a Democrat who is now running for governor in Texas.

The Mississippi law and its offspring are part of a long-running campaign by anti-abortion groups to find the Achilles’ heel of Roe v. Wade by way of the 1992 Planned Parenthood v. Casey ruling, which allows states to regulate clinics as long as they don’t harm a woman’s underlying right to abortion.

Abortion clinics address a huge demand for abortions by women but are not always embraced by local medical communities, which, especially in rural areas, often try to avoid controversy. For example, though the American Medical Association opposes the Mississippi law, one Jackson hospital told the Mississippi abortion clinic “don’t bother” to apply for admission privileges.

Beyond the politics of abortion, most hospitals also require that doctors admit a minimum number of patients a year in order to gain privileges. That threshold is often hard for abortion doctors to meet, since they rarely are forced to send patients to the hospital.

Nevertheless, it’s those peculiars of the medical industry that conservative legislators and governors are exploiting with the new standards and clinic admitting rules. They argue on behalf of women that abortion clinics should operate under higher medical standards, but they also know that many hospitals won’t extend admitting privileges to abortion providers.

Abortion supporters were buoyed by Tuesday’s ruling, but remained wary. “The fact that the Mississippi clinic can stay open is good news, but there are a lot of other cases pending in federal courts, and it’s impossible to know if those laws will be upheld or struck down,” Elizabeth Nash, who analyzes state laws for the Guttmacher Institute, told The New York Times.

Meanwhile, two more such admitting laws are scheduled to go into effect in Louisiana and Oklahoma later this year. So far, courts have temporarily blocked the new stricter standards in Alabama, Kansas, and Wisconsin, and now Mississippi, while new admitting policies are now in effect in Tennessee, Texas, Utah, Missouri, and North Dakota.

And on Monday, two Texas clinics will ask a Federal District Court for relief from another set of new standards that could leave fewer than 10 abortion clinics open in the country’s second-largest state.