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Jackson Women’s Health Organization v. Currier [admitting privileges]

The Center for Reproductive Rights filed a lawsuit on behalf of Jackson Women’s Health Organization and Dr. Willie Parker challenging HB 1390, which requires physicians associated with an abortion facility to maintain admitting privileges at a local hospital and to be board-certified or eligible in obstetrics and gynecology. These types of admitting privileges laws are opposed by medical experts, including the American Congress of Obstetricians and Gynecologists because they are medically unjustified and jeopardize women’s health by depriving them access to safe, high-quality health care.

Plaintiffs sought injunctive relief so that Jackson Women’s Health Organization — Mississippi’s sole remaining abortion clinic — could remain open. Plaintiffs alleged that the requirement that physicians be board-certified or eligible in obstetrics and gynecology was even more medically unnecessary than a 1996 law requiring abortion providers to have completed a residency in OB/GYN. A federal district court blocked the 1996 law in Pro-Choice Mississippi v. Thompson, No. 3:96CV596BN (S.D. Miss. Sept. 28, 1996), ruling that the state had not met its burden to show “there is a reasonable medical necessity directed to preserve the woman’s health in requiring ob-gyn residency training for all physicians performing abortions.”

In addition, Plaintiffs alleged that the admitting privilege requirement was “clearly enacted with the unconstitutional purpose ‘to cause fewer abortions’,” citing statements by elected officials that the specific purpose of HB 1390 was to make Mississippi an “abortion-free state.”

From the Center for Reproductive Rights:

On June 22, 2012, the Mississippi Department of Health notified the Jackson Women’s Health Organization, the state’s last remaining abortion clinic, that the Department would be enforcing House Bill 1390 on July 1—and not in mid-August, as it had previously indicated. House Bill 1390 specifies that any physician who is “associated with” a licensed abortion facility must be a board-certified or eligible obstetrician-gynecologist with admitting privileges at an area hospital. These requirements are medically unjustified and extremely burdensome; elected officials made multiple statements explaining that the purpose of imposing these requirements was to close down the last abortion clinic, making the state “abortion-free.”

In an attempt to obtain admitting privileges for its doctors, Jackson Women’s Health Organization started applying to local hospitals in mid-April, almost as soon as the bill had been signed into law. But the process of applying for admitting privileges is a long one, and can take several months. Then, on June 20, the sponsor of House Bill 1390 wrote to the Department of Health, demanding that it enforce the new law on July 1 instead of following its normal six-week administrative rulemaking procedures. When the Department notified the clinic that it would be enforcing the new law on July 1, the clinic, its doctors, and its staff faced an impossible choice: close down, or risk civil and criminal penalties for continuing to provide badly-needed care to women in the state while the doctors didn’t have the privileges required by the new law.

On June 27, 2012, the Center filed a federal lawsuit on behalf of the Jackson Women’s Health Organization and Dr. Willie Parker, seeking injunctive relief that would allow the clinic to stay open. Among other things, the lawsuit claims that the new law imposes medically unjustified and burdensome requirements that will effectively ban abortion in the state of Mississippi, and that this is the outcome that the new law was intended to have.

On July 1, 2012, U.S. District Court Judge Daniel P. Jordan III granted the plaintiffs’ request for emergency relief, blocking enforcement of the law until a hearing could be held on the plaintiffs’ motion for a preliminary injunction on July 11, noting that the plaintiffs had shown a substantial likelihood of success on their constitutional claims which the defendants had not rebutted. After the hearing, Judge Jordan granted a partial preliminary injunction, which allowed the new law to take effect but protects the plaintiffs against the risk of criminal or civil penalties for a period of time.

On April 13, 2013, Judge Jordan blocked all remaining forms of enforcement of the admitting privileges requirement, preventing the state Department of Health from revoking the clinic’s license for failing to comply with the new regulations. Defendants appealed to the Fifth Circuit Court of Appeals.

On July 29, 2014, a three-judge panel of the Fifth Circuit ruled that HB 1390 is unconstitutional, but limited the scope of its decision to the particular doctors in the lawsuit, paving the way for a future fight should a new provider open a clinic in Mississippi.

On November 20, 2014 the full Fifth Circuit refused to reconsider the the three-judge panel’s ruling that the law is unconstitutional.

On February 18, 2015, plaintiffs filed an appeal with the U.S. Supreme Court.

On June 28, 2016, the Supreme Court declined to hear the case.

Notably, in Planned Parenthood v. Abbott a different panel of judges for the Fifth Circuit held that a similar admitting privileges provision in Texas HB 2 was constitutional. The difference in outcome between the Mississippi and Texas cases hinged on whether or not Mississippi would lose its only clinic. The judges in the Mississippi case cited a 1938 Supreme Court decision, Gaines v. Canada, which held states cannot discriminate in the distribution of state services by relying on the availability of similar services in nearby states.

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**last updated November 4, 2019