NEW ORLEANS – A Mississippi law requiring doctors at abortion clinics to have admitting privileges at local hospitals would effectively shut down the state’s only abortion clinic and pose an unconstitutional burden on women seeking abortions, an attorney told a federal appeals court Monday.
Julie Rikelman argued on behalf of Jackson Women’s Health Organization, which says it has been unable to obtain such privileges for the doctors at its clinic. U.S. District Judge Daniel P. Jordan III let the law take effect in July 2012, after the clinic sued the state. But Jordan blocked the state from closing the clinic while it tried to comply.
In March, a three-judge panel of the 5th Circuit Court of Appeals upheld a similar Texas law that requires admitting privileges.
However, during Monday’s arguments, members of a different three-judge 5th Circuit panel noted that the law in Mississippi could force women seeking abortions to travel to other states. The panel gave no indication when or how it would rule but did raise the possibility that the Mississippi law posed what they called an “undue burden” on women in the state.
“It seems to me you’ve got a steep hill to climb when you say the only clinic in the state is closing,” Judge E. Grady Jolly told attorney Paul Barnes, of the Mississippi Attorney General’s Office.
Barnes argued that the law was a legitimate, constitutional exercise of state power. The Supreme Court has held that the Constitution guarantees the right to an abortion, but not an unsafe one, Barnes told judges. And he said the law is designed to ensure the health and safety of Mississippi women.
Opponents of the law have repeatedly said the law’s true purpose is to end abortion in the state and have pointed to Gov. Phil Bryant’s statements that he wants to do just that. Barnes, however, noted that Bryant has stressed that the law in question was a move to protect women’s health.
Health concerns deserve consideration, Judge Emile Garza said, noting that complications can arise from usually safe, routine procedures. “Even in a colonoscopy, if that goes south, you’re talking about a life or death situation,” he told Rikelman.
Rikelman said the Jackson clinic has competent doctors, with the ability to transfer patients who need emergency treatment transferred. Forcing women to other states effectively denies Mississippi the ability to regulate doctors who perform abortions on Mississippians, he said.
Barnes tried to cast doubt on whether the law would truly deny abortions in Mississippi, citing statistics showing that more than 3,000 women left the state for abortions in 2011 and that there are numerous municipalities in surrounding states where the procedures are available.
Opponents of the law note that Louisiana is considering a law requiring admitting privileges and that Alabama has such a law moving through the courts.
The 5th Circuit judges hearing the case were Jolly, Garza and Stephen Higginson.
In the Texas case, which was decided by judges Edith Jones, Jennifer Elrod and Catherina Haynes, opponents of the law have asked for a re-hearing before the full 5th Circuit, which currently has 14 active judges.
The courtroom was packed during Monday’s argument, but with little attention outside. A handful of abortion-rights supporters stood on the sidewalk. Two Houston men held up a handmade banner expressing support for the “pink house,” a nickname for the Jackson abortion clinic.