Last Abortion Clinic in Miss. Granted Reprieve

     (CN) – A Mississippi law that would have required the state’s last abortion clinic to obtain admitting privileges at a local hospital for its OB/GYNs is unconstitutional, the 5th Circuit ruled.
     In its court filings, the Jackson Women’s Health Organization stated that it had tried but was unable to obtain admitting privileges.
     By a two-to-one vote, the three-judge panel held that the law, which would have closed the state’s last abortion clinie, would have created an undue burden on the state’s residents because it would have required women seeking an abortion to travel outside Mississippi to one.
     Previously, the 5th Circuit upheld an identical law that closed abortion clinics in Texas.
     In this case, the panel majority leaned heavily on Planned Parenthood v. Casey, which said that a state cannot create laws or regulations regarding abortion that has the purpose or effect of imposing an “undue burden”.
     It went on to define that burden as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”
     Writing for the majority, U.S. Circuit Judge E. Grady Jolly, said, “Mississippi may not shift its obligation to respect the established constitutional rights of its citizens to another state. 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.”
     “As a result, we hold that JWHO has demonstrated a substantial likelihood of success on its claim that H.B. 1390’s admission-privileges requirement imposes an undue burden on a woman’s right to choose an abortion in Mississippi, and is therefore unconstitutional as applied to the plaintiffs in this case,” he continued.
     “Finally, we hold that, to the extent the district court’s preliminary injunction enjoined enforcement of H.B. 1390 against parties other than the plaintiffs in this case, it was overly broad and is modified to apply only to the parties in this case. Accordingly, the judgment of the district court granting the preliminary injunction is affirmed,” Jolly wrote.
     In a stinging dissent, U.S. Circuit Judge Emilio Garza said he believed Jackson Women’s Health Organization had failed to prove the law would force its closure, “given the independent decisions of the local hospitals.”
     ” … [E]ven if causation were established, because merely crossing a state line would not constitute an undue burden, closure of the only abortion provider in Mississippi would not necessarily be unconstitutional,” Garza continued, chiding the majority for failing “to make findings about abortion access in neighboring states.”
     “By its jarring opinion, the majority has affirmed the district court’s decision to enjoin enforcement of H.B. 1390, enacted by the Mississippi legislature — the people’s elected representatives — to regulate physicians’ services. That this injunction flows from the policy choices of judges, who must fill the vacuum that is now the Due Process Clause’s ‘liberty’ interest, is a profoundly troubling consequence of current constitutional jurisprudence under Casey.”

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