As Judge In Mississippi Hears TRAP Law, What Factors Will He Consider?

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As Judge In Mississippi Hears TRAP Law, What Factors Will He Consider?

Robin Marty

Judge Jordan will likely be weighing out the state's allegations of safety issues against the fundamental right of a woman to access an abortion.

District Judge Daniel Jordan will decide today whether or not to allow the state of Mississippi to enforce its new law that would close down Mississippi’s only public clinic to provide abortions by requiring doctors in the clinic to have admitting privileges to a local hospital. In determining the case, Jordan will have to weigh the state’s allegations that it is trying to protect the health of women from unsafe conditions versus a woman’s constitutional right to access an abortion. Mississippi lawmakers and anti-choice advocates have upped their accusations of potential health risks and their desire to “protect women” as they discuss the bill and present their evidence, but will that be enough to override a decade’s worth of public comment about their desire to make the state abortion-free by any means available?

The crux of the “safety issue” is the idea that Jackson Women’s Health Organization clinic owner Diane Derzis runs an operation that disregards safety standards, leading to a likelihood of potential abortion complications, and that requiring admitting privileges for the clinic’s doctors is a logical move should a complication require emergency follow up. To support their argument, the state uses testimony from known anti-abortion researchers such as John Thorp, Jr., M.D, who researched “physical harm” allegedly caused by having abortions, and James Anderson, chairman of Virginia Physicians for Life.

Also being used to support the idea of unsafe conditions in the clinic is a lawsuit by former clinic provider Dr. Joseph Booker, who filed for wrongful termination after he was let go from the organization in 2010. The lawsuit claims primarily that Derzis created a hostile work environment and made staffing and care choices based on racial bias and an attempt to financially profit as much as she could once she took over ownership of JWHO. But the defense is using allegations that she approved allowing the use of RU-486 for any woman in the state who wanted a medication termination, rather than just local women, compromising their health due to a potential lack of access to follow up care in case of complications.

The state also points to the recent removal of Derzis as owner of New Women All Women clinic in Alabama after that state’s Department of Public Health reported over 70 health violations during an investigation shortly after a medical error sent two patients to the hospital.  A number of the violations were technical and had little to do with patients or protocol, and as Ann Rose of Abortion Clinincs Online notes, one was written up 10 different ways in order to appear as separate violations and increase the number in the report.

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Derzis and her lawyers dismiss the allegations that her clinic could put women’s health in jeopardy and that admitting privileges is a necessary step to protect them. They note that since Derzis had taken over ownership, there had been no ambulances called to the clinic, and that if a complication should arise they have a transfer agreement with a local hospital. Instead, this is a law meant only to specifically target her clinic and shut it down.

Nancy Northup, President and CEO of Center for Reproductive Rights explained the issue to NPR:

If they feel that every doctor in the state of Mississippi should have admitting privileges in a hospital, OK. Pass that broad law that will apply to all doctors in the state. If they think all OB-GYNs in the state should have admitting privileges to the hospitals, that’s another thing.

This is designed specifically. They know that the doctors are coming from out of state because of the hostility towards abortion services in the state of Mississippi. And they know that, in this hostile atmosphere in Mississippi, the hospitals can turn them down – not because of anything in the doctor’s background. I mean, these are very well-qualified physicians. No. They can turn them down because they just choose to. And, in fact, that was the whole intent of the law.

To support their health claim, state lawmakers have recently switched their public comments to focus on women’s health, and toned down their zeal for ending abortion in the state. Rep. Sam Mims, who has not only heavily advocated for the bill but said he was looking for ways to implement it even faster because he didn’t “want to give the facility 10 extra days to perform abortions” told NPR in his own interview:

[E]ven if this abortion clinic closes, abortion is still legal in Mississippi. We don’t have the ability to outlaw it. And so that argument that if this abortion clinic closes, that no one can receive an abortion is just silly. It’s not true, because we know if a mother is pregnant and she has to abort this child because of the life of the mother, then that’s going to continue.

The second issue, we also want them to choose life. We want them to realize that that is a life, and so we hope they choose life. We hope if they do not want to keep the child, we hope they look at adoption and other areas. And so, again, that is not the intent of the legislation. To me, this is a health care issue.

However, being “abortion-free” has been a goal of Mississippi’s anti-choice activists for a long time, and although they may have stopped saying as much publicly since the injunction was issued, the history is still there.  It started in 1994 with “No Place To Hide,” an effort to intimidate the state’s only doctor to publicly provide abortions in the hopes of making Mississippi “the first state to be functionally free of child killers.”  It continued into 2007 when legislators specifically started openly advocating to make the state provider-less, focusing on JWHO first.

State Sen. Richard White, a Republican from Hines County, said his goal now is to go beyond the restrictions. “I feel like in the next couple of years you’re going to see Mississippi be the first one to stop abortion.”

So far, Mississippi law states that if and when the Roe v. Wade Supreme Court ruling, which allows abortions, is overturned, abortion will automatically become illegal here.

White hopes to push beyond that by sponsoring a bill to overturn abortion’s legality altogether, which would then force a court battle over Roe v. Wade itself.

For Tanya Britton, the president of Pro-Life Mississippi, an anti-abortion group, the short-term plan is to shut down the state’s last remaining clinic and then focus on ending abortion nationwide.

“Not one child will die by abortion, and not one mother will be maimed by abortion. That is the ultimate goal,” Britton said.

In today’s hearing, Judge Jordan will decide whether to extend the restraining order on the law, enforce a permanent block, or allow the law to go into effect.  Any option will result in appeals, with the question being whether the clinic will remain open in the mean time. The state will argue that because it will take at least 60 days to enforce the new law, there is no need to continue to block it for now. The clinic, on the other hand, will point to Mims’ eagerness to move quickly as a reason to act now.

Whichever way the judge rules, women will suffer, either because of a lack of access by shutting down the sole clinic, or the renewed efforts of anti-abortion activists to make the state truly abortion-free, even at the expense of the health of the women they claim they want to protect. 

We will have the judge’s decision when it is available.