Appeals Panel strikes down law that would have closed Mississippi’s last abortion clinic

 

By Dave Andrusko

Judge Emilo Garza

Judge Emilo Garza

A split three-judge panel of the 5th U.S. Circuit Court of Appeals today struck down a Mississippi law that requires abortionists to have admitting privileges at a local hospital. Just last March a separate three-judge panel of the 5th Circuit, which hears cases from Mississippi, Louisiana and Texas, unanimously upheld a virtually identical Texas law.

Mississippi’s case raised different issues because the challenge to the law came from the Jackson Women’s Health Organization, the state’s lone abortion clinic which is owned by the flamboyant Diane Derzis (see nrlc.cc/1iv5FqK; nrlc.cc/1lhm4Th; and nrlc.cc/1iv5ZWC).

The two judges in the majority ruling, E. Grady Jolly of Mississippi and Stephan A. Higginson of Louisiana, concluded, “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.”

Judge E. Grady Jolly

Judge E. Grady Jolly

The state of Mississippi argued that women could obtain abortions by traveling a few hours to nearby states. At oral arguments last April, Paul Barnes, of the Mississippi Attorney General’s Office, also countered the abortion clinic’s contention that if there are complications, women could be transferred to hospitals where they could receive emergency care.

Barnes told the panel, the Associated Press reported at the time, “The Supreme Court has held that the Constitution guarantees the right to an abortion, but not an unsafe one.” Barnes added, “The law is designed to ensure the health and safety of Mississippi women,” according to the AP.

Judge Jolly was unpersuaded. “We hold that Mississippi may not shift its obligation to respect the established constitutional rights of its citizens to another state,” he wrote. “Such a proposal would not only place an undue burden on the exercise of the constitutional right, but would also disregard a state’s obligation under the principle of federalism—applicable to all fifty states—to accept the burden of the non-delegable duty of protecting the established federal constitutional rights of its own citizens.”

Judge Stephen Higginson

Judge Stephen Higginson

Emilio M. Garza of Texas dissented. He wrote,

“The majority holds that the mere act of crossing a state border imposes an ‘undue burden’ on a woman’s right to choose to obtain abortion services. Because the undue burden test requires an assessment of the difficulty of obtaining abortion services, whether in a woman’s own state or a neighboring state, and because neither the district court nor the majority has undertaken this assessment, I respectfully dissent.”

Judge Garza’s dissent is brilliant. We will look at the court’s decision in more depth tomorrow.

However Judges Jolly and Higginson limited their ruling to the Jackson Women’s Health Organization, according to Lyle Denniston. Writing at scotusblog.com, he noted

“A federal district court judge earlier had issued a broad order against any enforcement of the privileges law, but the Fifth Circuit said that went too far, and it modified the order so that it only protected the Jackson facility. This, it stressed, was a case involving a challenge to the state law only as it applied in practice to the Jackson clinic.”