Federal judge continues to block new abortion law
Published: July 12,2012
JACKSON — A federal judge yesterday continued to block a state law that threatens to shut down Mississippi’s only abortion clinic and make it nearly impossible for women to get the procedure in the state.
U.S. District Judge Daniel P. Jordan III temporarily blocked the law July 1 and extended that order yesterday, though he did not say when he would rule on the clinic’s request for a preliminary injunction that would put the law on hold for a longer period. If he grants that request, the case eventually would go to trial.
The U.S. Supreme Court has ruled that states can’t place undue burdens on, or substantial obstacles to, women seeking abortions. The Mississippi law would require anyone performing clinic abortions to be an OB-GYN with privileges to admit patients to a local hospital. The doctors at the clinic in Jackson do not have those privileges, which the clinic maintains aren’t necessary.
Supporters of the law passed by the GOP-controlled Legislature this year said it’s designed to protect patients, and Republican Gov. Phil Bryant has said he hopes it will help make Mississippi “abortion-free.”
The clinic, Jackson Women’s Health Organization, said it has been unable to obtain admitting privileges for its two out-of-state OB-GYNs because local hospitals have not responded to their requests.
“They’re out to close us down,” the clinic’s owner, Diane Derzis, said of state officials.
Admitting privileges can be difficult to get because hospitals might not grant them to out-of-state physicians, or hospitals with religious affiliations might not give them to doctors who perform abortions.
When clinic employees called a Catholic hospital to ask about applying for privileges, Derzis said, “we were told not to bother.”
The clinic said it would face “irreparable harm” if the law were to be enforced because hospitals haven’t said when — or if — they’ll consider the privileges.
“If they’re denied or if the hospitals are dragging their feet, that’s going to be more clear evidence that there’s a substantial obstacle” to an abortion, clinic attorney Robert McDuff said.
Another attorney representing the clinic, Michelle Movahed of the New York-based Center for Reproductive Rights, said clinic physicians and nurses fear they could face criminal prosecution or lose their medical licenses if the law takes effect and the clinic can’t comply with all parts of it.
“It’s that vulnerable position that constitutes irreparable injury,” Movahed said.
State officials said the privileges help protect patients by ensuring they have continuity of care if a woman needs to go to the hospital. They also note that while the clinic might have to wait to get hospital privileges, “inconvenience is not ‘irreparable harm.’”
The state attorney general’s office declined to comment after the hearing.
Steven Aden, an attorney for a Washington-based anti-abortion group, Alliance Defending Freedom, sat with state attorneys in court Wednesday. He said he was acting as a consultant for the state to defend the law.
“All the state is doing here is to apply a common-sense rule that’s applicable to all ambulatory surgical centers,” Aden said.
When the governor signed the measure into law in April, he said, “If it closes that clinic, then so be it.” Republican Lt. Gov. Tate Reeves said: “We have an opportunity today with the signing of this bill to end abortion in Mississippi and also to protect women.”
Clinic attorneys said such statements demonstrate that officials were trying to enact unconstitutional barriers to abortion.
Special Assistant Attorney General Benjamin Bryant argued that any anti-abortion statements by elected officials were “weak evidence” that the purpose of the law was to prevent abortions.
Jordan responded that the governor, lieutenant governor and bill sponsor made public statements about wanting to end abortion.
“It’s not like we’re talking about random elected officials here,” Jordan said.
Terri Herring of the Pro Life America Network lobbied for the law and attended the court hearing. After the judge’s decision, Herring said the hospitals should deny admitting privileges for the abortion clinic’s doctors.
“There’s no vetting process for fly-by-night physicians who come in and perform abortions at the clinic,” Herring said.
The clinic uses out-of-state physicians because in-state physicians generally don’t want to face the social pressure of having protesters at their offices, homes or churches, clinic employees say.
Opponents of the law say any patient experiencing complications could receive immediate care from emergency room physicians.
The clinic for the past several years has also had a transfer agreement with a local OB-GYN who has hospital admitting privileges. He doesn’t perform abortions at the clinic but provides backup help by agreeing to meet clinic patients at a hospital if there’s an emergency.
Derzis said that since she acquired Jackson Women’s Health Organization in 2010, no woman has had to be taken from the clinic by ambulance.
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. But the 1992 decision also said states may not place undue burdens on or create substantial obstacles to women seeking abortions.
If the clinic closed, 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 clinic’s owner has said the clinic is unlikely to stay open and perform that few abortions per month. 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. They say in court papers that the clinic did about 3,000 abortions in 18 months.
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