It was a close call between numerous states vying for the "Most Adept At Using Arbitrary and Inimical Provisions Available Under The Law To Prevent Women From Being Able To Obtain An Abortion" award—the trophy is a bronze uterus in a cage—but Mississippi caught a last minute wind and prevailed over rivals Georgia, Michigan, Texas, North Carolina and Arizona.
Mississippi, you may recall, tried a "personhood" amendment last year, which would have defined life as beginning at conception and effectively outlawed abortion. It, amazingly, didn't pass. That hasn't stopped the governor and the legislature from creating the personhood amendment out of a series of arcane restrictions placed on abortion clinics, that, taken together, make it so onerous to provide or obtain an abortion that the practice becomes impossible.
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These measures have reduced the state's abortion clinics from eight to one, and the state recently passed a law intended to eradicate the last provider standing. Via Irin Carmon:
Mississippi House Bill 1390, requiring that abortion providers have admitting privileges at hospitals, was specifically passed to target JWHO's out-of-state doctors. It is unsurprisingly difficult to find a Mississippi-based doctor willing to deal with the sustained harassment on his or her doorstep, though JWHO's clinic director told me when I was there in October that she knows several local pro-choice doctors who have at least considered it. The situation is sufficiently dire that one of the doctors who does fly in to Jackson is referred to in the complaint as John Doe MD out of concern for his safety.
If there's any doubt that this is a regulation set up for the abortion clinic to fail, one of the hospitals didn't even bother to send the doctors an application for admitting privileges, despite two months of requests.
A Mississippi district court judge and George W Bush appointee has stayed the bill temporarily, allowing the final provider to continue; the matter will first reach an appellate court, and then possibly the high court. The fact that it was a Bush appointee who is unhappy with the law suggests that states determined to effectively outlaw abortion may be getting so extreme that they're finally running afoul of Casey v. Planned Parenthood, which prohibits states from placing an "undue burden" on women seeking an abortion. Via Scott Lemieux:
The implicit premise of the compromise that upheld Roe v. Wade was that while women seeking abortions could be inconvenienced, they could not be denied their right to choose an abortion outright. In practice, however, as the case of Mississippi starkly demonstrates, the "undue burden" standard has been applied so narrowly that states can use an ever-expanding variety of arbitrary restrictions to deny many women their right to choose altogether.
This case could prove an especially important landmark because the motives behind the Mississippi statute are transparent. While state regulations of abortion are almost always intended to be part of a long-term plan to ban abortion outright by pro-life interests, state legislators often try to defend abortion regulations as means not to restrict abortion but to protect the health of women.
In the case of Mississippi, there's no pretense that these regulations are anything but attempts to make it impossible to obtain abortions in the state. The goal, according to Governor Phil Bryant, is to make Mississippi "abortion free." Should the latest set of arbitrary regulations somehow not succeed in shutting down the state's lone abortion clinic, the legislature will keep trying. The goal is to ban abortion, not to protect the health of women.
To uphold Mississippi's regulatory framework would be to effectively overrule Roe and Casey.
That last part is, of course, exactly what these state legislatures want to do. The situation is almost win-win for them: either the law stands, and they effectively ban abortion, or the passage of these laws finally incites a review of Roe v. Wade from a conservative Supreme Court. That, even more than making abortion impossible in Mississippi, is the ultimate goal.
The alternative result is that courts finally start using the various legislatures' stated aims of making abortion impossible to start reading Casey more broadly, overturning the onerous restrictions on abortion clinics. It's a long shot, but it's possible that Mississippi went so far in their quest to eliminate abortion that they could incite the backlash, even amongst conservative judges, that makes the practice more available.
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