NRL News

Supreme Court declines for now to take up challenge to Mississippi’s admitting privileges law

by | Jun 30, 2015

By Dave Andrusko

Judge Emilio M. Garza

Judge Emilio M. Garza

For good reason, all the attention Monday was paid to the Supreme Court’s decision to issue a stay thus allowing nine (or ten) Texas abortion clinics to remain open while the Justices consider whether to hear an appeal of two provisions of Texas’ omnibus H.B. 2 that had been scheduled to go into effect in July.

The vote was 5-4. Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr. voted to deny the emergency appeal.

But with regard to the case brought in connection with Mississippi’s 2012 abortion law, the High Court took no action. We’ll discuss what that might mean momentarily.

Passed in 2012, H.B. 1390 requires abortionists to have admitting privileges at a local hospital. Unlike Texas’s H.B. 2, it does not require that abortion clinics meet the standards of Ambulatory Surgical Centers.

The law was originally set to go into effect July 1, 2012. A blizzard of judicial activity followed once Judge Daniel P. Jordan issued a temporarily restraining order against the state of Mississippi.

Last July, a divided 5th U.S. Circuit Court of Appeals panel blocked the state from enforcing the law. Then, in November, without comment, the full 5th Circuit refused to reconsider the panel’s 2-1 decision. In February, Mississippi Attorney General Jim Hood asked the High Court to review the decision.

So what does the Supreme Court’s [in]action mean? NBC News’s Pete Williams suggested

As a result, the law will remain on hold for several more months — perhaps until the court decides whether to take a similar law from Texas. The Supreme Court Monday blocked enforcement of the Texas law while it’s on appeal.

When the appeals panel heard the challenge to Mississippi’s law, the dissent written by Judge Emilio M. Garza was truly brilliant and is worth a few moments of our time.

The crux of the majority opinion was that because the local admitting privileges could not be met by the Jackson Women’s Health Organization, Mississippi’s lone abortion clinic, it would constitute an “undue burden” on women who would have to go elsewhere to abort. Judges Jolly and Higginson concluded that (as Garza’s describes it in his opening paragraph) “the mere act of crossing a state border imposes an ‘undue burden’ on woman’s right to choose to obtain abortion services.”

But as Garza noted, “in 2011, prior to the Act’s passage, nearly sixty percent of Mississippi women who obtained abortions already traveled to other states for these services.” What’s the “undue burden” on these women if the Jackson Women’s Health Organization closes because it cannot find a hospital willing to give its fly-in abortionists admitting privileges?

The rhetorical extension of Jolly’s and Higginson’s key premise was impressively hysterical. Jolly wrote

“We hold that Mississippi may not shift its obligation to respect the established constitutional rights of its citizens to another state. Such a proposal would not only place an undue burden on the exercise of the constitutional right, but would also disregard a state’s obligation under the principle of federalism—applicable to all fifty states—to accept the burden of the non-delegable duty of protecting the established federal constitutional rights of its own citizens.”

Garza demolished this nonsense pointing out (a) that Jolly and Higginson relied on a case that had nothing to do with abortion or could possibly be construed as having any relevance to the issue at hand; and (b) the difference between equal protection obligations and the Due Process Clause (which the abortion clinic was suing under).

Garza explained that Mississippi is not providing a service (abortion)—and indeed, “no state is obligated to provide or guarantee the provision of abortion services within its borders”; and that for those women in the Jackson area most affected by the clinic’s closing, “a proper undue analysis must assess the cost of obtaining abortion services at the closest facility in a neighboring state.”

That analysis had not been done by the district court. Why? Likely because both the district court and the majority of the appeals panel concluded that “the close of a state’s only abortion provider would be a per se [in and of itself] undue burden.”

In other words, why actually try to measure the impact when you’ve already decided closing the abortion clinic was in and of itself an undue burden.

There is much more to Garza’s terrific dissent. I encourage you to read our full analysis at

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Categories: Judicial