The temporary restraining order on H.B. 1390, the Mississippi bill meant to shut down the state’s only public clinic that provides abortions, has no set end date. Judge Daniel P. Jordan III has blocked the law while considering new information supplied the morning of the court date to rule on a permanent injunction, and this indefinite block could be a sign that he’s weighing the timeline of the process against the constitutionality of the law itself.
The TRAP law, which requires that anyone who performs more than 10 abortions in the state per month to be both a board-certified OBGYN, and to have admitting privileges to a local hospital, is clearly meant at this point to close down the clinic. The doctors associated with JWHO are already certified, and although they currently have not been able to obtain privileges, the clinic itself has a transfer order with a local hospital in case of emergencies.
But the law isn’t just meant to close down the clinic, but potentially challenge the definition of “undue burden” in Planned Parenthood vs. Casey, which allowed states to place “reasonable” restrictions on first trimester abortions. Under Casey, states can freely restrict abortion access during the first trimester so long as those restrictions do not unduly burden a woman’s right to chose abortion. Notice the standard is “unduly burden” a “right to chose abortion” and not “right to obtain” an abortion.
Is forcing a woman to leave the state to obtain a legal abortion finally one step too far under the ruling, and is the right to choose abortion the same thing as the right to obtain one? That may be a question that anti-choice activists and politicians want to press, but on which Judge Jordan isn’t ready to set a precedent.
Roe has collapsed and Texas is in chaos.
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According to the Associated Press, the state has filed documents declaring that it would take at least 10 months if not longer after H.B. 1390 went into effect before the clinic would be shut down.
The state health officer, Dr. Mary Currier, filed a sworn statement in federal court Thursday showing how long it would take to fully implement the law if it takes effect. If the clinic is inspected and found out of compliance, it would get about 10 months to try to follow the mandates and to exhaust its administrative appeals with the Health Department. If the clinic loses its state license, it would then get more time to appeal that loss to a state court.
The timeline presented gives Judge Jordan a new issue to consider. If the doctors are able to get admitting privileges before the clinic closes, H.B. 1390 no longer presents the constitutional challenge to a woman’s right to choose that it does if there is no place in the state that a woman could obtain a legal elective abortion.
Jordan is an a legally difficult spot. A law that could be unconstitutional today may not actually be so in six months, when a doctor’s privileges come through. Also, those privileges may never come through. Hospitals are given wide latitude in granting privileges and there’s not much the court can do to compel them to be granted in this case. This situation requires Judge Jordan judge to decide beyond the initial legal aspects whether or not he believes the doctors will be able to get privileges, and whether or not he wants to set a precedent that could be used further down the road by other states to whom requiring privileges could close clinics but not leave the state completely absent of a provider. These factors are likely all being weighed by Judge Jordan as he makes his decision on whether or not to permanently enjoin the law as unconstitutional, and explain why his temporary restraining order has no specific end date.
However, regardless of how Judge Jordan eventually decides, and whether or not the doctors do receive their privileges, it does not change the fact that the bill itself is placing unnecessary medical restrictions on doctors, and that it is the state legislature making medical decisions for women.
Robin Marty and Jessica Mason Pieklo are authoring a book on potential constitutional challenges to Roe v. Wade which will be published this spring.