Appeals Court Rules in Favor of Mississippi’s Lone Abortion Clinic

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http://blogs.wsj.com/law/2014/07/29/appeals-court-rules-in-favor-of-mississippis-lone-abortion-clinic/

A federal appeals court on Tuesday declared unconstitutional a two-year-old Mississippi law that opponents claimed would effectively shut down the state's only abortion clinic.

In a 2-1 ruling, a panel of the Fifth U.S. Circuit Court of Appeals barred Mississippi from enforcing a measure signed by Gov. Phil Bryant in 2012 that required physicians at an abortion facility to obtain admitting privileges at a local hospital.

The appeals court held that the statute puts "a substantial obstacle in the path of a woman seeking an abortion," violating a woman's right to choose to have an abortion as recognized by the U.S. Supreme Court more than 40 years ago.

Jackson Women's Health Organization, which operates the only licensed abortion clinic in Mississippi, sued the state in 2012, claiming that the law was designed to shut it down.

Previously, the state required only doctors affiliated with outpatient ambulatory surgical facilities to secure admitting privileges, while exempting abortion clinics. After the statute was passed, local hospitals refused to grant two doctors that performed the majority of abortion services at the clinic the right to admit patients into their facilities.

Lawyers for the state said the law was "an appropriate regulation of the medical profession" that "merely holds abortion clinics to the same legitimate health and safety standard as other types of outpatient surgical facilities."

They also argued that the law wouldn't impose an undue burden on women because it would, at most, increase travel time and costs for women seeking an abortion, according to the ruling.

A trial judge last year blocked the state from imposing any criminal and civil penalties on the clinic's doctors and staff pending the outcome of the litigation. The appeals court affirmed that ruling Tuesday.

The clinic has "demonstrated a substantial likelihood of proving that H.B. 1390—effectively closing the one abortion clinic in the state—has the effect of placing a substantial obstacle in the path of a woman seeking an abortion in Mississippi, and is therefore unconstitutional as applied to the plaintiffs in this case," wrote Circuit Judge E. Grady Jolly for the majority.

Abortion rights advocates hailed the decision. "Today's ruling ensures women who have decided to end a pregnancy will continue, for now, to have access to safe, legal care in their home state," said Nancy Northup, president and CEO of the Center for Reproductive Rights, which filed the suit on behalf of the clinic.

A spokeswoman for the Mississippi attorney general's office told Law Blog that the state is reviewing the ruling and considering its legal options.

Judge Emilio M. Garza, who dissented, said the majority's decision was flawed because it didn't properly assess "the difficulty of obtaining abortion services," whether in a woman's own state or a neighboring one. "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," he wrote.

The judge also questioned whether the clinic had shown that its closure would result directly from the law or could be blamed on the hospitals that refused to grant the doctors admitting privileges.

According to the opinion, hospitals declined to grant the doctors such rights because they deemed the clinic's practice inconsistent with their internal policies, the ruling said. One hospital said it feared that extending the privileges would "cause internal and external disruption of the Hospital's function and business within this community." The hospitals weren't party to the case.