Reproductive Rights Advocates to Roberts Court: Don’t Intervene in Mississippi Abortion Battle

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Reproductive Rights Advocates to Roberts Court: Don’t Intervene in Mississippi Abortion Battle

Jessica Mason Pieklo

The Roberts Court could decide in May to take up a Mississippi law designed to close the state's only abortion clinic.

Attorneys for the last remaining abortion clinic in Mississippi filed a brief with the U.S. Supreme Court urging the Roberts Court to turn away a request from anti-choice lawmakers to try and close the facility.

The Center for Reproductive Rights, along with local attorneys, filed the brief after the Mississippi attorney general’s office asked the Roberts Court to review a decision from the U.S. Court of Appeals from the Fifth Circuit that ruled Mississippi’s admitting privileges law unconstitutional.

HB 1390, enacted in April 2012, requires doctors performing abortions in the state to obtain admitting privileges at nearby hospitals or face criminal penalties. At the time it was enacted, the state’s anti-choice lawmakers candidly admitted the goal of the legislation was to shut down the Jackson Women’s Health Organization (JWHO).

Shortly before the law was set to take effect, the CRR, on behalf of JWHO and Dr. Willie Parker, challenged the law, arguing it was unconstitutional. A federal court agreed and partially blocked the law in July 2012 before fully blocking it in April 2013.

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Attorneys for Mississippi appealed those decisions to the conservative Fifth Circuit Court of Appeals, which ruled 2-1 in July to affirm the lower court’s decision that the law was unconstitutional. In February, attorneys for the state asked the Roberts Court to step in, arguing the Fifth Circuit’s decision conflicts with an earlier decision from that court to allow a nearly identical admitting privileges law to take effect in Texas.

Attorneys for JWHO argue the Fifth Circuit got it right and that despite what attorneys for Mississippi claim, the decision does not conflict with any earlier rulings, noting the decision is the first and only to “address head on the question of whether a woman’s ability to obtain an abortion in a different state should factor into the undue burden analysis.”

This is not the first time the question of anti-choice admitting privileges laws’ constitutionality has landed before the Roberts Court. In November 2013 the high court let Texas’ admitting privileges requirement take effect, decimating legal abortion access in the state.

But Mississippi’s case is different, reproductive rights advocates argue, because if allowed to take effect, HB 1390 would leave the state without a licensed abortion clinic and patients would be forced to travel outside the state for abortions. Attorneys challenging the law argue that outside the abortion context, federal courts have consistently ruled that a person’s ability to exercise a constitutional right outside the state cannot justify upholding a law that makes exercising that same constitutional right in their own state impossible.

The earliest the Roberts Court could decide to intervene is the end of May, which would place the case on the Court’s 2016 calendar.