Striking down a state law requiring abortionists to have admitting privileges in local hospitals, a Fifth Circuit panel ignored Supreme Court precedent and instead requires that Mississippi ensure abortions—regardless of safety—are provided within its borders. The court acknowledged the fact that admitting privileges protect women from the sometimes deadly consequences of abortion but ultimately that did not matter to the court. Abortionists, not women, benefit from the dangerous opinion.
The abortion “right” announced in U.S. Supreme Court cases, including Roe v. Wade, is not a right to the existence of abortion clinics. In fact, Roe expressed concern with what it called “abortion mills,” noting that their reported negative impact on women’s health “strengthens, rather than weakens, the State’s interest in regulating the conditions under which abortions are performed.”
The Fifth Circuit panel’s 2-1 opinion in Jackson Women’s Health Organization v. Currier does the reverse. It elevates in-state “access” to an abortion clinic over the long-recognized State interest in protecting maternal health. Such an analysis virtually immunizes abortion clinics from regulation if their failure to comply would close their doors. That means that where abortion clinics are scarce, they can operate without regard to health and safety standards.
In the over forty years since Roe, there are numerous examples demonstrating that regulation of abortion clinics is necessary to protect women’s health. The trial of now-convicted murderer Dr. Kermit Gosnell brought some attention to the tragic impact that the “legal” abortion industry has had on women’s health. Gosnell’s clinic was not an aberration. In fact, since 2009, over 100 abortion providers in 29 states have faced investigations or have been cited for violating state laws governing the provision of abortions.
Contrary to the assurances made in Roe, and subsequent cases such as Planned Parenthood v. Casey, and Gonzales v. Carhart, the panel’s flawed analysis permits abortion clinics, particularly in states with a limited number of abortion clinics, to run perpetually unregulated practices.
The panel’s novel rule – that abortion must exist within each state – runs directly counter to other Supreme Court precedent. As the Court articulated in Rust v. Sullivan, the government has no affirmative duty to “commit any resources to facilitating abortions.” Thus, a State should not be required to facilitate an abortion clinic in the absence of a qualified provider. The Fifth Circuit panel opinion implies the opposite.
The panel admitted that there are reasonable health and safety concerns justifying the Mississippi Legislature’s enactment of its admitting privileges requirement. In fact, the panel noted that the Fifth Circuit had already “addressed the rational basis of a virtually identical law” in Texas. The panel acknowledged that the reasons supporting the Texas admitting privileges requirements in Planned Parenthood v. Abbott “would be equally applicable to [the Mississippi law].”
In the Texas case, Dr. John Thorp, an expert for the State, detailed four main benefits supporting the admitting privileges requirement:
(a) it provides a more thorough evaluation mechanism of physician competency which better protects patient safety;
(b) it acknowledges and enables the importance of continuity of care;
(c) it enhances inter-physician communication and optimizes patient information transfer and complication management; and
(d) it support the ethical duty of care for the operating physician to prevent patient abandonment.”
Thorp’s testimony illustrates the point made in Roe itself that the State’s interest in regulating abortion to protect maternal health “obviously extends at least to [regulating] the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that may arise.”
Sadly, the majority in the Fifth Circuit panel decision placed the interests of the abortion clinic over the long recognized interests of the State to protect health and safety, particularly for women.