Judge could decide whether Mississippi will become 'abortion-free'

A federal judge’s ruling on Wednesday could shutter the only remaining abortion clinic in Mississippi, a major reproductive-rights battleground state where abortions are increasingly rare and teenage pregnancies are 60 percent more common than the national average.

Federal District Judge Daniel Jordan is hearing arguments and possibly ruling on whether to extend a temporary restraining order on a new state law, slated to have gone into effect on July 1, that requires more-advanced clinical certification for abortion-clinic nurses – something that some members of the clinic staff at this point do not have.

After Gov. Phil Bryant (R) publicly stated he’s in favor of an “abortion-free” state, the new abortion-clinic law is shaping up as a major test of a 1992 Supreme Court ruling that says states can regulate abortion clinics as long as they don’t put undue burdens on the rights of women. In that case, Planned Parenthood v. Casey, the court defined undue burden as having "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."

In the decision, the Supreme Court left it to lower courts to set the bar for what constitutes “a substantial obstacle,” meaning that a ruling in the Mississippi abortion-clinic case could become part of “a road map for how to close abortion clinics in other states,” says Philip Thomas, an attorney who blogs at Mississippi Litigation Review Blog.   

“This is extremely important to the anti-abortion forces,” adds George Cochran, a law professor at the University of Mississippi in Oxford. “They sincerely believe in the constitutionality of this law. But the fact is the state has a heavy burden here, especially in the context where the governor and other state officials have said the amendment is designed to rid the state of any abortion clinic.”

The clinic filed a lawsuit June 27, seeking to stop enforcement of the law. It argues that the law's requirement – that anyone performing an abortion must have the credentials to admit patients to a local hospital – is medically unnecessary and that the law would create “irreparable harm” by forcing the clinic to close. To rule in the clinic’s favor and maintain the restraining order, Judge Jordan will also have to be convinced that the clinic’s case is legally sound and could actually prevail if the matter goes to court.

The clinic in question, Jackson Women’s Health Organization, opened in 1996 and performs about 2,000 abortions a year. 

Proponents of the law say it’s intended to raise standards for women’s health care in the state. If the judge allows the law to take effect, Mississippi would join 37 states that have similar requirements, they add.

But statements by public officials, including Governor Bryant, claiming that the purpose of the law is to shut down this specific abortion clinic and thus, for all practical purposes, end abortions in the state, could play a key role in the case. Jordan has yet to decide if he will include the statements in his deliberations, but in one hint, he used news clippings about the political machinations around the law in his decision to temporarily stall it on July 1.

While many legal experts believe the clinic will prevail, at least for now, anti-abortion activists say they’ll go the distance to appeal the case – if necessary, to the US Supreme Court. At the very least, it’s likely that the US Fifth Circuit Court of Appeals will at some point get the case, setting the law at least for Mississippi, Louisiana, and Texas.

"Every pro-life law that has been passed in Mississippi has been challenged and followed by an injunction to stop enforcement," Terri Herring, the state’s chief anti-abortion activist, told Reuters. "All of our laws, though, have eventually been upheld as constitutional."

They’ve also proven effective. In the early 1980s, Mississippi had 14 abortion clinics. Now, with one, the state has one of the lowest abortion rates in the country. It also has the highest teenage pregnancy rate, with 55 births per 1,000 teens over 15 years old, compared with the national average of 34 births per 1,000 teens, a historic low.

The political overtones are being heard nationally, largely because Mississippi has emerged as a major abortion-rights battleground and because of the symbolism around Mississippi potentially becoming the only US state without an abortion clinic. Women with unwanted pregnancies would have to travel in excess of 200 miles to clinics in surrounding states if they wanted an abortion.

But while Mississippi seems a natural choice to test the limits of constitutional protections for women seeking abortions, there’s also pushback from what some say is the state’s silent majority. A referendum last year to give fetuses “personhood” under the state constitution – which could have made abortion murder in some cases – was opposed by 55 percent of Mississippians.