Though a federal appeals court panel ruled Tuesday that a Mississippi law that would close the state’s only abortion clinic is unconstitutional, a very similar Louisiana statute likely won’t be affected.
Mississippi and Louisiana are among 10 states that passed laws requiring that physicians who perform procedures to end unwanted pregnancies obtain admitting privileges from nearby hospitals.
Voting 2-1, the 5th U.S. Circuit Court of Appeals panel ruled that Mississippi’s 2012 “admitting privileges” statute effectively would close the state’s only abortion clinic, the Jackson Women’s Health Organization, forcing patients to travel out of state for the procedure. The majority found that the U.S. Supreme Court’s 1973 Roe v. Wade decision established a constitutional right to abortion for all citizens — and that Mississippi may not shift its responsibilities to other states.
“Mississippi is not similarly situated to Louisiana’s law,” said state Rep. Katrina Jackson, the Monroe Democrat who sponsored the Louisiana law, House Bill 388, which goes into effect Sept. 1.
Louisiana already had a law that required physicians at ambulatory surgical centers to affiliate with a nearby hospital. HB388 added physicians who terminate pregnancies to that legal requirement. The Mississippi law is much more focused, applying only to physicians performing abortions, rather than doctors performing a number of surgical procedures.
Jackson said, when the new law goes into effect in Louisiana, only the physicians at the two New Orleans-area abortion clinics and the one in Baton Rouge would not be in compliance. Physicians working at both clinics in Shreveport have admitting privileges, and therefore will be allowed to continue performing abortions, she said.
“There’s only one abortion facility in Mississippi; we have five … The majority (opinion) reflects that Mississippi has only one,” said Benjamin Clapper, director of Louisiana Right to Life Federation, an advocacy group based in New Orleans that worked with Jackson on the legislation.
“The opinion is narrowly written,” Clapper said, adding that a different 5th Circuit panel upheld a similar 2013 Texas law requiring physicians to have admitting privileges at a hospital within 30 miles. In that March ruling, the judges on that panel found that traveling fewer than 150 miles to obtain an abortion is “not an undue burden.”
Clapper said the Mississippi case likely will be appealed, asking the entire 5th Circuit to rule on the issue. The 16-member, New Orleans-based 5th Circuit handles cases from Louisiana, Mississippi and Texas.
“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,” Nancy Northup, president and CEO of the Center for Reproductive Rights, an advocacy group based in New York, told The Associated Press.
Mississippi Republican Gov. Phil Bryant’s spokeswoman said he would comment once his staff has read the ruling. A spokeswoman for Mississippi Attorney General Jim Hood said the state is considering options.
Supporters of laws mandating admitting privileges say they protect women’s health by ensuring that a physician who performs an abortion in a clinic would also be able to treat the patient in a hospital in case of complications.
Opponents say the requirement is unnecessary, since patients in distress are automatically treated in emergency rooms; and that it gives religious-affiliated hospitals veto power over who can work in an abortion clinic and, by extension, whether a clinic can remain open.
The appeals court panel ruled that the 1973 U.S. Supreme Court decision established a constitutional right to abortion that the Mississippi law effectively shifts to another state’s citizens. “Pre-viability, a woman has the constitutional right to end her pregnancy by abortion. HB1390 effectively extinguishes that right within Mississippi’s borders,” wrote the two judges in the majority ruling, Judges E. Grady Jolly, 77, of Jackson, Mississippi, and Stephen A. Higginson, 43, of New Orleans.
Jolly was appointed to the 5th Circuit in 1982 by President Ronald Reagan. Higginson was appointed in 2011 by President Barack Obama.
Judge Emilio Garza, of San Antonio, disagreed: “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.”
Garza, 67, was appointed to the federal bench in 1988 by President Ronald Reagan and to the 5th Circuit by President George H.W. Bush in 1991.
The Jackson, Mississippi, clinic remains open, using out-of-state physicians who travel to Mississippi to do abortions several times a month. For years, the clinic has had an agreement with a local physician who will meet patients at a Jackson hospital if there are complications. Clinic owner Diane Derzis has said such complications are rare.
Emily Wagster Pettus, of The Associated Press, contributed to this report.