Last Wednesday, Mississippi petitioned the Supreme Court to reverse a lower court decision that is keeping the state's only remaining abortion clinic open--for now. The clinic is under threat of closure, thanks to a 2012 state law that requires abortion clinic doctors to gain admitting privileges at local hospitals.
The clinic's doctors applied to all seven hospitals in the greater-Jackson area. Unsurprisingly, each rejected them. Many of the hospitals explicitly cited the doctors' provision of abortion services as the reason.
The law's supporters claim it would protect women's health, but that claim is a thin veil for their real objective of shutting the clinic. In his 2014 state of the state speech, delivered on the anniversary of the Supreme Court's landmark decision upholding women's right to an abortion, Mississippi Governor Phil Bryant admitted as much: "Let me be clear, on this unfortunate day of Roe v. Wade my goal is to end abortion in Mississippi."
Numerous national medical organizations, including the American Medical Association (AMA) and the American College of Obstetricians and Gynecologists (ACOG), have argued that admitting-privilege laws are medically unnecessary, and dangerously threaten women's ability to access reproductive health services. In a lawsuit regarding a similar law in Texas, the AMA and ACOG claimed that these laws "do nothing to protect the health of women and are incongruous with modern medical practice."
Both the Texas and Mississippi cases wound their way to the conservative US Court of Appeals for the Fifth Circuit. In October 2013, the Fifth Circuit allowed the Texas law to take effect, immediately forcing some one-third of the state's women's health centers to cease providing abortion services.
The following month, the Supreme Court denied an emergency application to overturn the Fifth Circuit's Texas ruling. The Court's four liberal justices dissented, recognizing "the potential for serious physical or other harm to many women whose exercise of their constitutional right to obtain an abortion would be unduly burdened by the law."
These concerns were especially well founded for women living in the 24 counties in the Rio Grande Valley, where the last remaining abortion clinic was forced to close. These women were left choosing between three bad options: drive 150 miles to the nearest clinic in Corpus Christi, continue their unwanted pregnancies, or seek to terminate their pregnancies through illegal, dangerous, and frequently ineffective means.
In response to this perilous situation, a Texas judge allowed clinics in McAllen and El Paso to reopen in August 2014. The Fifth Circuit quickly overturned this decision in an attempt to keep the clinics closed. In response to another emergency application, the Supreme Court reversed the Fifth Circuit and upheld the lower court decision in a brief, five-sentence order. This ruling suggests that a majority of the Court's justices understood the grave threat that the closure of all clinics in the Rio Grande Valley would have posed to Texas women.
The challenge to Mississippi's law has fared better. The same Fifth Circuit blocked the law from going into effect for the duration of the legal battle. The court distinguished the Mississippi from the Texas case on the grounds that closing the only remaining abortion clinic in a state would present unique constitutional problems.
Mississippi has now appealed that decision to the Supreme Court. Predictably, proponents of reproductive freedom would like the Court to let the Fifth Circuit's interim ruling stand. "There is no reason for the U.S. Supreme Court to step into this case," said Nancy Northup, president and CEO of the Center for Reproductive Rights, which represents the clinic. She added, "The Court should decline to review the sound determination that Mississippi women would be irreparably harmed if the state were allowed to close its last clinic."
Hard as it is to predict the Supreme Court's decisions, Northup's view will probably prevail. Despite its brief responses to emergency applications in the Texas case, the Supreme Court has not granted full review to a major abortion case since 2007, and justices across the ideological spectrum would have reasons to view the Mississippi case as an inopportune one for review. The Court's liberal justices will not want to disturb the positive Fifth Circuit ruling, while its conservative justices are unlikely to want their next abortion statement to be about shutting the sole remaining abortion clinic in a state.
The Court will still have myriad opportunities to address the constitutionality of admitting-privilege laws. In addition to the Mississippi and Texas cases, similar legal challenges are pending in neighboring Louisiana and Alabama, as well as Oklahoma and Wisconsin.
If the Supreme Court does not review the Fifth Circuit's ruling at this stage, the case will go to trial, meaning that the Jackson clinic is still under threat of closure. If the clinic were to shut, Mississippi women would have to cross state lines to exercise their constitutional right to an abortion--or seek dangerous means to terminate their pregnancies outside the protection of the law.