Hearing could determine whether new abortion law goes into effect
Published: July 11,2012
JACKSON — A hearing today will help a federal judge decide whether to keep blocking a Mississippi abortion law or let it go into effect.
The state’s only abortion clinic, Jackson Women’s Health Organization, says it could be forced to close if the state is allowed to start enforcing the measure, which would require anyone performing abortions at the clinic to be an OB-GYN with privileges to admit patients to a local hospital.
The clinic says the admitting privileges are not medically necessary and that it has been unable to obtain them for its two out-of-state OB-GYNs. It also argues in court papers that the requirement “gives hospitals a third-party veto over the availability of abortion in Mississippi” and that the clinic would face “irreparable harm” if the law were enforced.
State attorneys argue the admitting privileges requirement is designed for patient safety. They also note that while the clinic might have to wait to get hospital privileges for the two physicians, “inconvenience is not ‘irreparable harm.’”
The clinic filed a lawsuit June 27, seeking to stop enforcement of a measure that it says would shut it down and limit women’s access to a constitutionally protected medical procedure. U.S. District Judge Daniel P. Jordan III issued a temporary restraining order July 1, the day it was to take effect.
During a hearing set for 1 p.m. today, the clinic’s attorneys will try to persuade Jordan to keep the law on hold, while attorneys for the state will argue it should take effect.
The temporary hold remains in effect through today’s hearing, and both sides have filed extensive written arguments.
Jordan has several options.
He could extend the temporary restraining order and give himself time to issue a written ruling on the clinic’s request for a preliminary injunction.
He could rule immediately from the bench, granting a preliminary injunction and giving attorneys on both sides time to prepare for a trial that could take place weeks or months from now.
Or he could allow the state to begin enforcing the law.
If the case goes to trial, the judge would consider whether to issue a permanent block, a decision that could be appealed.
Matt Steffey, a law professor at Mississippi College in Jackson, said a judge considers two main points in deciding whether to issue a preliminary injunction: Would there be irreparable harm if the law is enforced? And, is it likely that the plaintiff who filed the lawsuit — in this case, the clinic — would be successful if the case goes to trial?
The U.S. Supreme Court’s Roe v. Wade decision in 1973 established a nationwide right to abortion. In 1992, the court’s decision in Planned Parenthood v. Casey upheld the Roe decision and allowed states to regulate abortions before fetuses are viable. The 1992 decision also said states may not place undue burdens or substantial obstacles in the way of women seeking abortion.
Steffey said today’s arguments could be about whether the law could be justified as a legitimate regulation of women’s health care.
“That’s, I think, the central point that will be in play,” Steffey told The Associated Press yesterday. “Looking at precedent, this is not the first time that states have tried to regulate abortion clinics out of existence.”
The clinic points out that Republican Gov. Phil Bryant said the day he signed the law that he wants Mississippi to be “abortion-free.”
“Contrary to plaintiffs’ suggestions, however, that comment lacks legal significance,” Bryant’s attorney, Jack L. Wilson wrote in court papers. “To begin with, Gov. Bryant has also made clear that he supports the law at issue in this case for public health reasons.”
If the clinic closes, abortion could be nearly impossible to obtain in Mississippi. The closest clinics to Jackson are about 200 miles away, in Louisiana, Tennessee and Alabama.
Mississippi physicians who perform fewer than 10 abortions a month can avoid having their offices regulated as an abortion clinic, and thus avoid restrictions in the new law. The Health Department said it doesn’t have a record of how many physicians perform fewer than 10 abortions a month. Clinic operators say almost all the abortions in the state are done in their building.
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