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5th Circuit to Hear Miss. Abortion Clinic Admitting Privileges Case

By Brett Snider, Esq. on March 25, 2014 | Last updated on March 21, 2019

Another admitting privileges case is making its way to the Fifth Circuit, this time from a Mississippi abortion law.

On Monday, the Fifth Circuit notified the parties that it would hear oral arguments on April 28 from both the state of Mississippi and the Jackson Women's Health Organization as to whether the Mississippi "admitting privileges" requirement should apply to the clinic.

This case should remind you of the recently passed Texas law, and it may not be coincidence that neither case has been resolved yet.

Mississippi Abortion Law

Passed in 2012, Mississippi House Bill 1390 requires all physicians who perform abortions in "abortion facilities" have "admitting privileges" at a local hospital. This provision threatened to close the Jackson Women's Health Organization (JWHO) clinic, which is the state's only abortion clinic, reports The Associated Press.

As a Texas federal court ruled in the analogous "admitting privileges" case two states over, it is hard to see a state interest in the requirement for abortion doctors to have admitting privileges at local hospitals. Hospitals must already accept pregnant patients in need of emergency care, and opponents of such laws argue they only serve to make abortions non-existent in their states.

These views aren't without merit in Mississippi. The AP reports that Mississippi Gov. Phil Bryant said on the 41st anniversary of Roe v. Wade, "my goal is to end abortion in Mississippi."

The Mississippi federal district court enjoined the state from enforcing its "admitting privileges" requirement against the JWHO in April 2013, largely because it would force Mississippi's only abortion facility to close. The Jackson Women's Health Organization court found that forcing women to go to other states was well above the "incidental effect" of regulations considered in Casey.

Texas and Miss. Await the 5th Cir.

It seems unlikely that the Fifth Circuit would have agreed to set a date so soon for oral arguments if it had made up its mind about "admitting privileges" requirements. An all-female panel heard the Texas "admitting privileges" case in January, and questions suggested that the judges were skeptical that increased distance to procure an abortion was really an undue burden.

Judge Edith Jones told the gathered parties that "hundreds of miles" is only a short distance on a flat Texas highway at "75 mph," the Houston Chronicle reported. Maybe the question of whether "admitting privileges" regulations constitute undue burdens will come down to sheer distance. It is close to 200 miles from the JWHO to the Planned Parenthood in New Orleans, around a three hour drive.

Mississippi's could possibly be a closer case than Texas' because not a single hospital has allowed the JWHO doctors to have admitting privileges -- in many cases precisely because they perform elective abortions. In contrast, only an estimated third of Texas' clinics have been unable to meet the "admitting privileges" requirement.

Bottom Line

Admitting privileges requirements certainly seem to have the effect of shuttering abortion facilities, no matter the state. It still remains for the Fifth Circuit to determine if this is merely incidental, or an unconstitutional undue burden.

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