Highlight on Mississippi: State hopeful as Supreme Court silent on appeal at end of term

The Supreme Court’s silence at the end of its term regarding an appeal by the Mississippi in an action seeking to close the state’s only abortion clinic means that the clinic will likely remain open until the fall. The appeal came after the Fifth Circuit blocked Mississippi from enforcing a state law requiring clinic physicians to obtain admitting privileges to a local hospital.

Background

It is settled under the Fourteenth Amendment that a woman’s right to choose to have an abortion is protected as a basic right. However, it can be limited the the state’s interest “in protecting potential life and the health of the mother,” as long as such regulations do not impose an “undue burden” or a “substantial obstacle to” the basic right to terminate a pregnancy before the fetus is viable. Only laws with an “incidental effect of making it more difficult or more expensive to procure an abortion” do not cause an undue burden.

The Mississippi law required all physicians associated with an abortion facility to have “admitting privileges at a local hospital and staff privileges to replace local hospital on-staff physicians.” Before the law was passed, Mississippi only required that facilities have a transfer agreement with a local hospital and a written agreement for backup care with a physician with admitting privileges, as well as at least one affiliated doctor with admitting privileges. Jackson Women’s Health Organization (JWHO), which brought the suit against the state, operates the only licensed abortion clinic in Mississippi, and only one of its three doctors has admitting privileges.

Fifth Circuit Decision

Previously, the Fifth Circuit prevented the state from closing the clinic while it attempted to comply with the law, holding that the law satisfied rational basis review but creates a substantial obstacle to a woman’s choice. The court found that the state had “essentially confirmed” that it would revoke the clinic’s license, having written in its opening brief that “if enforced, the admitting privileges requirement would likely require JWHO, the only currently licensed abortion facility in Mississippi, to lose its license,” (Jackson Women’s Health Organization v. Currier, 5th Cir., July 29, 2014) (see Admitting privileges requirement for abortion clinics put on hold, Health Law Daily (July 31, 2014).

Attorneys for the state asked the Supreme Court to overturn the ruling of the Fifth Circuit, arguing that it “effectively places the clinic beyond the regulatory reach of the state.” The clinic argued that physicians in Mississippi who perform “similar or less safe surgical procedures in their offices,” such as colonoscopies and hernia repair, are not required to obtain hospital admitting privileges.

At the end of the term, the case was not named by the Supreme Court among those for which it granted certiorari, nor was it among those it rejected. The Court did grant a stay pending the filing of a petition for a writ of certiorari on a Fifth Circuit decision upholding a Texas law requiring admitting privileges for abortion clinics. The granting of a stay may be an indication that the Court will hear Texas’s full appeal. A decision in the Texas case could directly impact the Mississippi law in question because of the close similarities of the laws.