Right now in the legal battle over Mississippi’s sole abortion clinic there’s not much left to do but wait.
The state of Mississippi served the Jackson Women’s Health Organization its notice of intent to revoke the clinic’s license since it cannot comply with the state’s new requirement that all doctors performing abortions at the facility also have hospital admitting privileges. Under the state administrative procedures law, the clinic can remain open while it waits for a hearing by the state’s health department. That hearing could be more than a month away. In the meantime lawyers have gone back to the court, with evidence that compliance cannot happen, and renewed their request that the court block the law.
Attorneys defending the law do not contest that closing the clinic would obstruct women’s access to abortion care and instead argue that if women suffer as a result of a lack of access it is the fault of the providers. The clinic wouldn’t face closure if it simply “dis-associated” itself from the out-of-state doctors that the hospitals refuse to credential. It’s a familiar argument that boils down to little more than victim-blaming by a harasser or abuser: abortion providers and women who need care, you brought this harassment on yourself.
Mississippi’s TRAP law was designed to do one thing only, harass the state’s only abortion clinic out of existence. So in that sense it’s appropriate that the state invokes a abuse dynamic to defend its actions. The state may try and gloss this over in its legal arguments, but those efforts amount to just that, glossing.
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In a briefing filed with the court, the state of Mississippi speculates that women could still access abortion care in-state because, they posit, there may be doctors who, unbeknown to anyone in the state including department of health officials, are performing a handful of abortions a year. These mythical providers are, according to the state, going to fill the gap should the clinic close. JWHO estimates that approximately 400 women will need abortion care from the clinic during the first two months of 2013, and the response from the state amounts to a promise, based on pure speculation, that some other person will deal with the public health crisis that will ensure from denying women access to needed reproductive health care.
That, right there, may be the most illuminating argument anti-choice advocates are making in Mississippi, Texas, and elsewhere as they target clinics for closure and work to drive legal abortion underground: the state has a duty to protect women from “bad” abortion care, but no obligation to make sure they can access “good” care because no “good” woman would need abortion care to start nor would any “good” doctor provide it.
But there’s a difference between invoking this kind of misogynist rhetoric for campaigning and wrapping it in legal precedent to try and make that rhetoric law. To argue that closing the only abortion clinic in the state as a matter of law would not create an undue burden on a woman’s right to chose abortion, and even if it did, it’s not the fault of the state but of the clinic itself not only ignores precedent that says states cannot harass providers out of existence purportedly in the name of health and safety concerns, it also advances a rhetorical framing that women lack agency to make informed health care choices because, by virtue of needing an abortion to begin with, they’ve shown an inability to “properly” conduct themselves.
If earlier legal proceedings challenging the Mississippi bill are any indication, it’s an argument that is not likely to get very far with the court. In July when the court first considered the clinic’s request the block the law the court found the clinic’s argument as to the law’s unconstitutionality was likely to succeed but declined to specifically block the law while the credentialing process moved forward. So Mississippi courts may not be willing to adopt the anti-woman framing put forward by the state in defense of their TRAP laws, but as more states consider similar measures, and ground them in similar rhetoric there’s a real risk another court will.