Republicans in many states have tackled abortion head on this year with new laws that would prohibit the procedure after a pregnancy reached a certain number of weeks. A more nuanced tactic is underway in a handful of states, using regulations as an anti-abortion weapon.
Mississippi has landed in court to defend a slate of tough provider requirements that advocates on both sides say could ultimately force the state's only abortion-providing clinic to close. Alabama and North Dakota have adopted similar laws in recent weeks.
The Mississippi legal battle has its roots in a law enacted last year that sought to force abortion-providing doctors in the state to meet a series of requirements, such as obtaining admitting privileges at a nearby hospital and being state-certified in obstetrics and gynecology. Supporters of the measure call the requirements common-sense steps to ensure that doctors who perform abortions meet certain standards and to protect women who undergo the procedure. A federal judge late Monday extended a temporary order blocking the state from enforcing the law while the lawsuit unfolds.
“This is a health care facility, so it is regulated,” said Mississippi Rep. Sam Mims, the Republican author of the bill. “This legislation deals nothing with a woman's right to have an abortion.”
This is an area where both sides agree: What's at stake in the legal fight isn't just the nuances of medical regulation and doctor licensing, but the future of abortion in the state, where nine out of 10 women already live in a county without an abortion-providing facility, according to one estimate.
If the Jackson Women's Health Organization closes, the state would be the only one in the country without a provider.
“This is really the first time it's been so clear that not a single abortion-providing facility in the state could comply,” said Michelle Movahed, the lead attorney with the Center for Reproductive Rights, which is fighting the law. “States aren't allowed to ban abortion, and that's what Mississippi effectively did.”
Health Department Hearing on Rules
Mississippi Department of Health officials were set to meet Thursday (April 18) to determine whether the Jackson clinic and its doctors are in compliance with the law. Most expect a short hearing. Even the clinic's supporters say it's no secret the clinic is not in compliance — they say the law was designed that way. The department was expected to move to revoke the clinic's license, a move blocked by the court order issued Monday.
All of the doctors at the clinic are board-certified, but the difficulty has come in gaining hospital privileges. Attorneys fighting the law say public pressure, moral objections and politics led hospitals to deny privileges before they really considered the doctors' application. They released letters from the hospitals that explain as much: “The nature of your proposed medical practice is inconsistent with this Hospital's policies and practices as concerns abortion and, in particular, elective abortion,” one excerpt read.
The administrative dispute is just one part of the fight. The legal battle in federal court could ultimately prove more significant and decisive — for Mississippi and for other states with similar restrictions.
Last summer, supporters of the clinic successfully argued for a partial delay, securing a preliminary injunction in federal court to block the civil and criminal penalties for providers in the law. The clinic was given more time to comply and could keep working while the lawsuit continued.
The Health Department's process was allowed to move forward. The judge reasoned that it was too early to know the administrative effects of the measure before the clinic tried to comply with the law and the Department of Health evaluated that process.
The clinic tried and failed. The state notified the clinic in January it could be shuttered. Thursday's hearing would have been the last step in that process, but the order from U.S. District Judge Daniel Jordan III, appointed in 2006 by former President George W. Bush, says the state can't enforce the law while the lawsuit is still pending.
The Legal Questions
The legal questions in the suit are significant. Opponents of the law argue the clinic restrictions are effectively an unconstitutional ban on abortion. The restrictions have proven difficult to challenge in both state and federal court in other states (Alabama, Arizona, Kansas, Mississippi, North Dakota, Tennessee and Utah) with similar laws.
What is different about the Mississippi case? A favorable ruling for abortion-rights supporters in Mississippi would give a federal court's blessing to arguments that clinic and provider restrictions are nothing more than roundabout abortion restrictions.
Other rulings against similar measures have been on narrower grounds. But a broad ruling could affect the restrictions that have increased since Republicans took control of many statehouses in the 2010 election.
“It's part of trying to eliminate abortion access without directly overturning Roe v. Wade,” said Elizabeth Nash, state issues manager at the Guttmacher Institute, which supports abortion rights. “That is pretty clearly what many state legislatures are going toward, essentially piling on so many abortion restrictions.”
Over the years, states have successfully imposed restrictions on abortion providers, from licensing issues to the width of clinic hallways. Supporters of those measures see history, health concerns and common sense on their side.
“The situation here is that this is one facility, and it's the only facility in Mississippi, and they can't comply with minimum standards,” said Mary Spaulding Balch, director for state legislation for the National Right to Life Committee.
Beyond the legal outcome of the court case, the protracted challenge could give other states pause as the cost of litigation has increasingly become part of the debate as more states consider tougher restrictions and regulations.
Democratic Gov. Mike Beebe of Arkansas cited the potential cost of litigation as he vetoed an abortion bill earlier this year. North Dakota lawmakers last week approved a $400,000 legal fund to defend that state's tough new measures.