Human Events Blog

Federal judge temporarily blocks Mississippi abortion law

On Sunday, U.S. District Judge Daniel P. Jordan issued a temporary restraining order against Mississippi’s new abortion law, which had gone into effect that very day.  The state health department has canceled inspections planned for Monday to ensure compliance with the law.  Hearings for a permanent injunction have been scheduled for July 11, according to a report from Reuters.

Mississippi already has very strict abortion laws.  The new law, “signed by Republican Governor Phil Bryant in April requires all doctors performing abortions at a Mississippi clinic to be certified in obstetrics and gynecology, as well as to have admitting privileges at a local hospital,” as Reuters explains.

Supporters of the law say it provides important safety measures for women in the event of botched abortions.  When the law passed the Senate, Governor Bryant described it as “an important step in strengthening abortion regulations, and protecting the health and safety of women.”

The clinic, Jackson Women’s Health Organization, contents that this requirement would put them out of business, because the local hospitals refuse to grant admitting privileges to their doctors.  According to the Reuters report, they “have not been able to obtain privileges at any of the half dozen hospitals within a 30-minute drive from the clinic, despite trying since early May.”

For this reason, Jackson Women’s Health says the new law was designed specifically to wipe them out.  Clinic owner Diane Derzis told Reuters it was “a political strategy to ban abortion in Mississippi without having to challenge Roe vs. Wade” and alleged “it isn’t about anything but putting that clinic out of business.”

To buttress this point, the clinic’s lawsuit “cited several instances in which state lawmakers publicly voiced hope the law would make Mississippi abortion-free,” including Governor Bryant’s promises “to work to make Mississippi abortion-free.”

Even more to the point, Lt. Governor Tate Reeves explained during a legislative session that “if we require [abortion clinics] to have admitting privileges, and the hospitals don’t provide them, and I don’t think they will, then we can end abortion in Mississippi.”

But hasn’t the ObamaCare decision at the Supreme Court taught us that the intentions of lawmakers shouldn’t matter, when the legality of a particular bill is debated?  The ObamaCare decision even said that the legal arguments they make don’t matter, if the judge decides that a bill should be upheld, nor does the actual text of the legislation, but let’s leave that aside for the moment and focus on the somewhat more sound principle that imputations of intent have nothing to do with whether a particular measure is legal or not.  The proposed endgame should not be a determining factor in whether or not individual measures pass strict legal tests.  Solid laws are passed with debatable motivations all the time.

For that matter, passing laws which are very difficult for targeted businesses to meet is a common tactic of Big Government, particularly in the Obama years.  Is that sort of thing legally acceptable only when huge federal bureaucracies do it?  There’s no escape from federal regulatory overreach, but people who don’t like Mississippi’s abortion laws can easily escape them – a point the Jackson Women’s Health Organization attempts to obscure by complaining that it’s a 200-mile drive from their location to clinics in Louisiana, Tennessee, or Alabama.  200 miles is hardly a grueling journey in the 21st century, and in any event people who don’t live in Jackson would be considerably closer to those other clinics.  The ease of access to inter-state resources cannot be determined by choosing a single arbitrary location with Mississippi and firing up Google Maps to calculate drive times.

Mainstream media accounts I’ve read this morning do not pause to ask a simple follow-up question about the struggle of the Jackson Women’s Health Organization to gain admitting privileges at those local hospitals: if they’ve been trying since early May, they’ve only been working on the problem for about two months.  Is that an unusually long time for gaining such privileges?  That doesn’t really sound suspicious, given the speed at which modern bureaucracy moves, especially when medical matters are involved.

The Jackson Clarion-Ledger attempted to answer that question in a June 9 article, concluding that it will probably take at least three months to process these applications:

Admitting privileges at local hospitals may be difficult to obtain. Many religious-affiliated hospitals do not allow abortions to be performed at their facilities and some will not affiliate with doctors who perform abortions at other hospitals or clinics.

But even public hospitals like the University of Mississippi Medical Center have strict guidelines. At UMC, doctors must apply with the appropriate clinical department, where officials determine whether applicants meet basic qualifications, spokesman Tom Fortner said. Then, the executive committee of the medical staff and the dean of medicine must approve the application.

Additionally, since UMC operates with a closed medical staff, only faculty usually have admitting privileges. There must be a need to obtain an exception – known as affiliate faculty – and those physicians must practice exclusively at UMC. The only exception is Blair E. Batson Hospital for Children, as it is the only children’s hospital in the state.

As at UMC, doctors seeking privileges at a hospital within Baptist Health Systems would need to demonstrate they’re qualified, certified and covered by insurance in Mississippi. Then, physicians would undergo a review process, requiring approval from the board of directors and other appropriate committees.

Additionally, the Clarion-Ledger notes that clinic owner Diane Derzis also owns facilities in Georgia, Tennessee, and Alabama… where her Birmingham facility “was recently forced to surrender its license after two patients were given an overdose of a drug designed to prevent blood loss.”  That might be a factor in how easily the staff at her Jackson facility can gain admitting privileges from local hospitals.

Furthermore, the Associated Press notes that “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.”  Curiously, the state health department says it doesn’t have a record of how many abortions are performed by such physicians.  That’s the sort of thing state agencies usually keep track of.  The Jackson clinic maintains they perform “almost all the abortions in the state.”

The ability of physicians to provide abortion services outside of the big abortion clinic in Jackson would seem to argue that the new law doesn’t eliminate abortion in the state.  It imposes a condition that a single large provider is having some difficulty fulfilling, although it is yet too early to conclude that meeting the requirement is impossible, because final responses have not been received from all of the area hospitals.  Perhaps the judge’s injunction will be extended to provide the three to four months required for all of the hospitals to render final answers.  And even if they all refuse to grant admitting privileges to the Jackson Women’s Health Organization, does that make it logically – and legally – possible to assert that no large clinic could possibly obtain such privileges?

There isn’t much question about the ultimate goal of the Mississippi legislators, who have been candid about their desire to greatly reduce the relatively small number of abortions currently performed in their state.  But can they be prevented from imposing restrictions which are not wholly unreasonable on their face – there are sound medical arguments for the admitting-privileges requirement, which nine other states already impose – if the practical result increases the difficulty of obtaining an abortion beyond some arbitrary threshold, whose irregular contours are mapped through a series of suits and counter-suits?

If not, are there any other freedoms that should be protected by such measures… or can various levels of government continue the practice of burdening every other industry with measures designed to crush them?  The pro-lifers in Mississippi appear to be playing a version of the game radical environmentalists have perfected over the past few decades.

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