The struggle of Mississippi's last legal abortion clinic took an unusual turn Wednesday when the clinic's attorneys filed a brief essentially accusing the state of lying to the Supreme Court. They also asked the Supreme Court not to take the case.
In February, Mississippi petitioned the Supreme Court to overturn an appeals court ruling that kept the clinic open. At issue is a 2012 law that requires that all abortion clinics' doctors have admitting privileges at local hospitals. The clinic's doctors have been unable to comply with the law -- in some cases, hospitals have refused to even send them applications -- which likely did not surprise the state's governor, Phil Bryant, who declared his goal "to try and end abortion in Mississippi" when he signed the law. The 5th Circuit Court of Appeals blocked the law last summer, saying Mississippi could not tell women they had to go out of state for their constitutional rights.
In urging the Supreme Court to take its case and allow it to shut down the clinic, Mississippi told the court it was only trying to protect women's health and “to level the playing field by requiring all doctors on staff at abortion clinics to meet the same professional licensing standards applicable to doctors in other areas of outpatient surgical practice." That implied that abortion providers were uniquely unregulated. But attorneys at the Center for Reproductive Rights, who represent Mississippi's Jackson Women's Health Organization, say that's "simply not true."
"Mississippi physicians who provide similar or less safe surgical procedures in their offices, such as colonoscopy, hernia repair, hemorrhoidectomy, and dilation and curettage, do not need admitting privileges," according to Jackson Women's Health Organization's brief to the court. "Mississippi physicians can even provide surgery with general anesthesia in their offices without having admitting privileges."
A spokeswoman for the Mississippi attorney general's office didn't immediately respond to a detailed request for comment on the allegation that Mississippi misrepresented its law.
The clinic's brief also says that Mississippi's bid to the court "has nothing to recommend it." Because the clinic won at the lower court, it has no interest in the Supreme Court getting involved. And the stakes go far beyond Mississippi, as challenges to similar laws in Texas, Alabama, Wisconsin, Oklahoma and Louisiana proceed. Mississippi is also relatively unusual in having only one remaining clinic, which opened the door to the 5th Circuit's novel argument that drew on a segregation-era case after a different panel from the same court approved Texas's version of the law. The Supreme Court seems likely to take one of the cases against laws shutting down clinics through regulation, but as the brief points out, it is probably better off taking one that has already gone to trial, with the full presentation of evidence that involves.
The 5th Circuit has yet to rule on a related challenge, Texas's requirement that all clinics be converted to mini-hospitals, which the court heard in January. If enforced, that law would leave less than ten clinics in the state, a number already greatly diminished by Texas's admitting privileges law.