News Abortion

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.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

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.

News Law and Policy

Court Blocks North Carolina’s ‘Discriminatory’ Voter ID Law

Imani Gandy

“[T]he new provisions target African Americans with almost surgical precision," Circuit Judge Diana Gribbon Motz wrote for the court, describing the North Carolina GOP's voter ID law.

A unanimous panel of the Fourth Circuit Court of Appeals struck down North Carolina’s elections law, holding that the Republican-held legislature had enacted the law with discriminatory intent to burden Black voters and that it therefore violated the Voting Rights Act of 1965.

The ruling marks the latest defeat of voter ID laws passed by GOP-majority legislatures across the country.

“We can only conclude that the North Carolina General Assembly enacted the challenged provisions of the law with discriminatory intent,” Circuit Judge Diana Gribbon Motz wrote for the court.

HB 589 required in-person voters to show certain types of photo ID beginning in 2016, and either curtailed or reduced registration and voting access tools that Black voters disproportionately used, including an early voting period. Black voters also disproportionately lack photo IDs.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

Republicans claimed that the law was intended to protect against voter fraud, which has proven exceedingly rare in Republican-led investigations. But voting rights advocates argue that the law was intended to disenfranchise Black and Latino voters.

The ruling marks a dramatic reversal of fortune for the U.S. Justice Department, the North Carolina chapter of the NAACP, and the League of Women Voters, which had asked the Fourth Circuit to review a lower court ruling against them.

U.S. District Court Judge Thomas Schroeder in April ruled that plaintiffs had failed to demonstrate that the law hindered Black voters’ ability to exercise political power.

The Fourth Circuit disagreed.

“In holding that the legislature did not enact the challenged provisions with discriminatory intent, the court seems to have missed the forest in carefully surveying the many trees,” Motz wrote. “This failure of perspective led the court to ignore critical facts bearing on legislative intent, including the inextricable link between race and politics in North Carolina.”

The Fourth Circuit noted that the Republican-dominated legislature passed the law in 2013, immediately following the U.S. Supreme Court’s ruling in Shelby v. Holder, which struck a key provision in Section 4 of the Voting Rights Act.

Section 4 is the coverage formula used to determine which states must get pre-clearance from the Department of Justice or the District Court for the District of Columbia before making any changes to election laws.

The day after the Supreme Court issued its ruling in Shelby, the Republican chairman of the Senate Rules Committee announced the North Carolina legislature’s intention to enact an “omnibus” election law, the appeals court noted. Before enacting the law, however, the Republican-dominated legislature requested data on the use, by race, of a number of voting practices.

After receipt of the race data, the North Carolina General Assembly enacted legislation that restricted voting and registration, all of which disproportionately burdened Black voters.

“In response to claims that intentional racial discrimination animated its actions, the State offered only meager justifications,” Motz continued. “[T]he new provisions target African Americans with almost surgical precision.”

The ruling comes a day after the Rev. Dr. William J. Barber II, president of the North Carolina chapter of the NAACP and one of the primary organizers of Moral Mondays, gave a rousing speech at the Democratic National Convention that brought convention goers to their feet.

During a protest on the first day of the trial, Barber told a crowd of about 3,500 people, “this is our Selma.”

Analysis Law and Policy

After ‘Whole Woman’s Health’ Decision, Advocates Should Fight Ultrasound Laws With Science

Imani Gandy

A return to data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous "informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

Whole Woman’s Health v. Hellerstedt, the landmark U.S. Supreme Court ruling striking down two provisions of Texas’ omnibus anti-abortion law, has changed the reproductive rights landscape in ways that will reverberate in courts around the country for years to come. It is no longer acceptable—at least in theory—for a state to announce that a particular restriction advances an interest in women’s health and to expect courts and the public to take them at their word.

In an opinion driven by science and data, Justice Stephen Breyer, writing for the majority in Whole Woman’s Health, weighed the costs and benefits of the two provisions of HB 2 at issue—the admitting privileges and ambulatory surgical center (ASC) requirements—and found them wanting. Texas had breezed through the Fifth Circuit without facing any real pushback on its manufactured claims that the two provisions advanced women’s health. Finally, Justice Breyer whipped out his figurative calculator and determined that those claims didn’t add up. For starters, Texas admitted that it didn’t know of a single instance where the admitting privileges requirement would have helped a woman get better treatment. And as for Texas’ claim that abortion should be performed in an ASC, Breyer pointed out that the state did not require the same of its midwifery clinics, and that childbirth is 14 times more likely to result in death.

So now, as Justice Ruth Bader Ginsburg pointed out in the case’s concurring opinion, laws that “‘do little or nothing for health, but rather strew impediments to abortion’ cannot survive judicial inspection.” In other words, if a state says a restriction promotes women’s health and safety, that state will now have to prove it to the courts.

With this success under our belts, a similar return to science and data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous “informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

In Planned Parenthood v. Casey, the U.S. Supreme Court upheld parts of Pennsylvania’s “informed consent” law requiring abortion patients to receive a pamphlet developed by the state department of health, finding that it did not constitute an “undue burden” on the constitutional right to abortion. The basis? Protecting women’s mental health: “[I]n an attempt to ensure that a woman apprehends the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.”

Texas took up Casey’s informed consent mantle and ran with it. In 2011, the legislature passed a law that forces patients to undergo a medical exam, whether or not their doctor thinks they need it, and that forces them to listen to information that the state wants them to hear, whether or not their doctor thinks that they need to hear it. The purpose of this law—at least in theory—is, again, to protect patients’ “mental health” by dissuading those who may be unsure about procedure.

The ultra-conservative Fifth Circuit Court of Appeals upheld the law in 2012, in Texas Medical Providers v. Lakey.

And make no mistake: The exam the law requires is invasive, and in some cases, cruelly so. As Beverly McPhail pointed out in the Houston Chronicle in 2011, transvaginal probes will often be necessary to comply with the law up to 10 to 12 weeks of pregnancy—which is when, according to the Guttmacher Institute, 91 percent of abortions take place. “Because the fetus is so small at this stage, traditional ultrasounds performed through the abdominal wall, ‘jelly on the belly,’ often cannot produce a clear image,” McPhail noted.

Instead, a “probe is inserted into the vagina, sending sound waves to reflect off body structures to produce an image of the fetus. Under this new law, a woman’s vagina will be penetrated without an opportunity for her to refuse due to coercion from the so-called ‘public servants’ who passed and signed this bill into law,” McPhail concluded.

There’s a reason why abortion advocates began decrying these laws as “rape by the state.”

If Texas legislators are concerned about the mental health of their citizens, particularly those who may have been the victims of sexual assault—or any woman who does not want a wand forcibly shoved into her body for no medical reason—they have a funny way of showing it.

They don’t seem terribly concerned about the well-being of the woman who wants desperately to be a mother but who decides to terminate a pregnancy that doctors tell her is not viable. Certainly, forcing that woman to undergo the painful experience of having an ultrasound image described to her—which the law mandates for the vast majority of patients—could be psychologically devastating.

But maybe Texas legislators don’t care that forcing a foreign object into a person’s body is the ultimate undue burden.

After all, if foisting ultrasounds onto women who have decided to terminate a pregnancy saves even one woman from a lifetime of “devastating psychologically damaging consequences,” then it will all have been worth it, right? Liberty and bodily autonomy be damned.

But what if there’s very little risk that a woman who gets an abortion experiences those “devastating psychological consequences”?

What if the information often provided by states in connection with their “informed consent” protocol does not actually lead to consent that is more informed, either because the information offered is outdated, biased, false, or flatly unnecessary given a particular pregnant person’s circumstance? Texas’ latest edition of its “Woman’s Right to Know” pamphlet, for example, contains even more false information than prior versions, including the medically disproven claim that fetuses can feel pain at 20 weeks gestation.

What if studies show—as they have since the American Psychological Association first conducted one to that effect in 1989—that abortion doesn’t increase the risk of mental health issues?

If the purpose of informed consent laws is to weed out women who have been coerced or who haven’t thought it through, then that purpose collapses if women who get abortions are, by and large, perfectly happy with their decision.

And that’s exactly what research has shown.

Scientific studies indicate that the vast majority of women don’t regret their abortions, and therefore are not devastated psychologically. They don’t fall into drug and alcohol addiction or attempt to kill themselves. But that hasn’t kept anti-choice activists from claiming otherwise.

It’s simply not true that abortion sends mentally healthy patients over the edge. In a study report released in 2008, the APA found that the strongest predictor of post-abortion mental health was prior mental health. In other words, if you’re already suffering from mental health issues before getting an abortion, you’re likely to suffer mental health issues afterward. But the studies most frequently cited in courts around the country prove, at best, an association between mental illness and abortion. When the studies controlled for “prior mental health and violence experience,” “no significant relation was found between abortion history and anxiety disorders.”

But what about forced ultrasound laws, specifically?

Science has its part to play in dismantling those, too.

If Whole Woman’s Health requires the weighing of costs and benefits to ensure that there’s a connection between the claimed purpose of an abortion restriction and the law’s effect, then laws that require a woman to get an ultrasound and to hear a description of it certainly fail that cost-benefit analysis. Science tells us forcing patients to view ultrasound images (as opposed to simply offering the opportunity for a woman to view ultrasound images) in order to give them “information” doesn’t dissuade them from having abortions.

Dr. Jen Gunter made this point in a blog post years ago: One 2009 study found that when given the option to view an ultrasound, nearly 73 percent of women chose to view the ultrasound image, and of those who chose to view it, 85 percent of women felt that it was a positive experience. And here’s the kicker: Not a single woman changed her mind about having an abortion.

Again, if women who choose to see ultrasounds don’t change their minds about getting an abortion, a law mandating that ultrasound in order to dissuade at least some women is, at best, useless. At worst, it’s yet another hurdle patients must leap to get care.

And what of the mandatory waiting period? Texas law requires a 24-hour waiting period—and the Court in Casey upheld a 24-hour waiting period—but states like Louisiana and Florida are increasing the waiting period to 72 hours.

There’s no evidence that forcing women into longer waiting periods has a measurable effect on a woman’s decision to get an abortion. One study conducted in Utah found that 86 percent of women had chosen to get the abortion after the waiting period was over. Eight percent of women chose not to get the abortion, but the most common reason given was that they were already conflicted about abortion in the first place. The author of that study recommended that clinics explore options with women seeking abortion and offer additional counseling to the small percentage of women who are conflicted about it, rather than states imposing a burdensome waiting period.

The bottom line is that the majority of women who choose abortion make up their minds and go through with it, irrespective of the many roadblocks placed in their way by overzealous state governments. And we know that those who cannot overcome those roadblocks—for financial or other reasons—are the ones who experience actual negative effects. As we saw in Whole Woman’s Health, those kinds of studies, when admitted as evidence in the court record, can be critical in striking restrictions down.

Of course, the Supreme Court has not always expressed an affinity for scientific data, as Justice Anthony Kennedy demonstrated in Gonzales v. Carhart, when he announced that “some women come to regret their choice to abort the infant life they once created and sustained,” even though he admitted there was “no reliable data to measure the phenomenon.” It was under Gonzales that so many legislators felt equipped to pass laws backed up by no legitimate scientific evidence in the first place.

Whole Woman’s Health offers reproductive rights advocates an opportunity to revisit a host of anti-choice restrictions that states claim are intended to advance one interest or another—whether it’s the state’s interest in fetal life or the state’s purported interest in the psychological well-being of its citizens. But if the laws don’t have their intended effects, and if they simply throw up obstacles in front of people seeking abortion, then perhaps, Whole Woman’s Health and its focus on scientific data will be the death knell of these laws too.