NEW ORLEANS — A federal appeals court has struck down a Mississippi law that would have closed the last remaining abortion facility in the state.
As previously reported, in 2012, Mississippi legislators enacted a law requiring abortionists to have board certification and obtain hospital admitting privileges. The latter requirement, which allows abortionists to send injured women to local hospitals for further treatment, was said to serve as a safeguard to protect mothers that need critical medical care.
After the bill was signed into law, Jackson Women’s Health Organization, the last abortion facility in the state, filed a lawsuit in an attempt to block the requirements. During a hearing, the facility explained in court that it had been unsuccessful in obtaining admitting privileges, and was granted six months of additional time to comply. However, none of the area hospitals agreed to partner with the facility despite the extension.
“They were clear that they didn’t deal with abortion and they didn’t want the internal or the external pressure of dealing with it,” said administrator Diane Derzis.
After U.S. District Judge Daniel P. Jordan III issued a preliminary injunction against the law last year, the state appealed to the 5th Circuit Court of Appeals in New Orleans, Louisiana. On Tuesday, the court ruled 2-1 that the requirement was unconstitutional, asserting that the 1973 ruling of Roe v. Wade established that mothers had a “right” to an abortion and that all states are “obligated” to uphold that “right.”
“Given that the Supreme Court long ago determined that the Constitution protects a woman’s right to choose an abortion, the ultimate issue in this appeal is whether the State of Mississippi can impose a regulation that effectively will close its only abortion clinic,” Judge E. Grady Jolly, nominated by Ronald Reagan, wrote on behalf of the majority. “The State of Mississippi, however, argues that Mississippi citizens can obtain an abortion in Tennessee, Louisiana, or Alabama without imposing an undue burden upon Mississippi citizens in the exercise of their constitutional rights.”
“[But] Mississippi may not shift its obligation to respect the established constitutional rights of its citizens to another state,” the court ruled. “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.”
While Judge Stephen A. Higginson, nominated by Barack Obama, concurred, Judge Emilio M. Garza wrote a dissent in which he disagreed that states are required to possess operating abortion facilities.
“[N]o state is obligated to provide or guarantee the provision of abortion services within its borders,” he wrote. “Rather, a state need only ‘regulat[e] [the] privately provided service’ of abortion in accordance with the Due Process Clause, … ensuring that its rational laws do not impose an undue burden. Mississippi owes this duty to its female residents whether the clinic is open or not.”
“Absent any evidence and factual findings on the Act’s impact on costs and travel distances for accessing abortion services, JWHO has failed to demonstrate a substantial likelihood of proving a constitutional violation,” Garza concluded.
On Monday, Chet Gallagher, a 65-year-old retired police officer, was ordered by a separate criminal court not to have any contact with Jackson Women’s Health Organization after he was convicted of “obstructing a business” for walking up and down the public sidewalk while reading the Bible outside of the facility. Harriet Ashley, an 82-year-old great grandmother, was likewise ordered not to go near the abortion facility after she was declared guilty of obstruction and disorderly conduct for reading her Bible while sitting in a chair on the public sidewalk.