Last week, a panel sitting for the U.S. Court of Appeals for the Fifth Circuit struck down – by a 2 to 1 margin − a 2012 Mississippi law as an undue burden on a woman's right to abortion. What kind of burden, you might ask, would the majority deem sufficiently undue so as to overturn a state law?
The answer might surprise you: Requiring physicians who perform abortions to secure hospital admitting privileges –just like physicians with other outpatient surgeries.
Considered standard medical practice for essentially any type of office-based procedure, doctors maintain hospital admitting privileges to assure the health and safety of patients. The treating physician should have unrestrained and immediate access to a nearby hospital in case of a complication.
For this very reason, Mississippi has long compelled physicians practicing in ambulatory surgical centers to have admitting privileges at local hospitals, including orthopedists, plastic surgeons, dentists, and dermatologists. But, up and until 2012, abortion doctors were exempted from this common-sense measure.
In light of the vast and documented history of abortions-gone-bad in clinics in and outside the state, Mississippi could no longer ignore the welfare of women for the sake of a political cause. Passing the law, the state merely acknowledged that a woman having an abortion was deserving of the same standard of care granted to one having a mole removed.
The majority, in ruling the law unconstitutional as an undue burden, did not have any qualms with the purpose of it. Citing a previous decision of the Fifth Circuit (by another panel), that had upheld a virtually identical requirement in Texas as constitutional, the majority noted the rational basis of the law and how it could aid in "preventing patient abandonment."
But the rub, says the majority, is that this Mississippi law would have the effect of closing the last remaining abortion clinic in the Magnolia State, causing women to travel to other states to obtain an abortion.
That's it. The court didn't specify any practical impediments the law would create for women seeking an abortion. Since clinics are available and close by in bordering states, no Mississippi woman could ever be denied an opportunity of having an abortion. And, there was no suggestion that women possess sentimentality about having an abortion in their home state.
Criticizing the fallacy of elevating state lines over practical concerns, Judge Emilio Garza, in his dissenting opinion (representing the 1 in the 2 to 1 margin on the panel), points out that "the sole act of crossing a state border cannot, standing alone, constitute an unconstitutional undue burden on the abortion right because the Constitution envisions free mobility of persons without regard to state borders."
In contrast to the minor (if any) inconvenience of crossing state lines, women in Mississippi will now undoubtedly suffer a true and substantial burden without the law mandating hospital access for treating doctors. They will be subjected to physicians who lack privileges to practice in local hospitals as well as the credentials necessary to obtain those privileges.
The abortion clinic that challenged the law, Jackson Women's Health Organization (JWHO), retains three doctors to handle abortions on its behalf. One, identified as Dr. Roe in the pleadings, has admitting privileges at local hospital, refuting any notion that hospitals discriminate against their practice. But the other two doctors – who happen to do the bulk of the abortions at the clinic − do not have the requisite credentials to secure the privileges with any of the seven hospitals located in the community.
The majority for the appellate court was deeply troubled by the effect of the Mississippi law, and how the insistence on doctors having hospital admitting privileges could force the JWHO clinic – the last abortion clinic left in Mississippi − to shut down.
But if the physicians performing abortions there lack the qualifications needed to obtain hospital privileges, wouldn't it be best for the clinic to shut down?