To Courts, Abortion is the Über-Recht

On July 29, the Fifth Circuit Court of Appeals handed down a 2-1 ruling, declaring H.B. 1390, a 2012 act of the Mississippi legislature, unconstitutional.

According to its title, the bill “require[s] that all physicians who perform abortions in abortion facilities must have admitting privileges at a local hospital and must be board certified in obstetrics and gynecology.”

Mississippi holds the extremist position that people who perform abortions should be doctors and should be able to admit their patients to a hospital.

Luckily, two federal appeals judges have restrained Mississippi from imposing such radical demands (one reader commenting in the New York Times called it “sharia law”) on the good women of the Magnolia State.

Now, benighted and bitter reader clinging “to guns or religion or antipathy toward people who aren’t like them,” “progressive states” like California have no longer adhere to silly notions like demanding doctors do abortions (at least on humans). As of October 2013, Governor Jerry Brown signed legislation letting a variety of non-physicians do abortions. One source, however, pointed out that California still requires a certified veterinary surgeon to perform abortions on an animal.

Kermit Gosnell, too, neither completed OB-GYN certification nor was his partner in crime, Harvey Karmen (whose technique for abortion was akin to surgery by Roto-Rooter) even a doctor. (For an interesting account of that butchery, see here.)

A further proof of Mississippi’s obscurantist war on women is that the state bans abortion by teleconference, according to the Guttmacher Institute. Yes, Mississippi requires the abortionist actually to get his hands bloody, touch the woman, and even be in the same state in which he is performing the abortion. All these restrictions Planned Parenthood regards as illogical, unnecessary, and onerous burdens on abortion. (That’s why abortionists are suing Iowa).

And many federal judges are quite willing to go along with this twisted logic.

The same federal appeals court that struck down Mississippi’s requirement that a doctor have admitted privileges at a hospital upheld virtually the same requirement in a Texas law enacted last year over Wendy Davis’s filibuster. So, why can’t Mississippi do what Texas does?

Because, said the Court, it would put Mississippi’s sole abortion clinic out of business. “… [T]he ultimate issue in this appeal is whether the State of Mississippi can impose a regulation that effectively will close its only abortion clinic.”

Well, if that is the criterion by which a State regulation becomes unconstitutional, then have not Judges Jolly and Higginson just immunized the “Jackson Women’s Health Organization” from any state regulation of its services?

Given that some states allow non-physicians to perform abortions, doesn’t Mississippi’s law unconstitutionally burden abortion “services?” (States’ rights don’t count, as we have seen in the post-Windsor flurry of lower federal courts throwing out state laws protecting marriage). It is conceivable that the Jackson clinic might run out of doctors and, even if it doesn’t, the Guttmacher Institute claims that 99 percent of Mississippi counties lack abortion clinics, so perhaps some “abortion affirmative action” is needed.

The owner of the Jackson clinic also ran an abortion clinic in Alabama which, according to one source was shut down by that state for lack of proper standards.   Mississippi Right to Life issued an August 2013 press release calling on their State’s authorities to do what Alabama had already done. Since dividing time between two states might be burdensome, why shouldn’t Mississippi’s ban on video conference abortions also fall?

Indeed, following the logic of the Appeals Court, if Mississippi found substandard sanitary procedures in place in the clinic, would it be required to keep the clinic open so as not to “effectively close [the state’s] only abortion clinic?”

It all makes sense … if you regard abortion as the über-Recht, the super right that trumps all others. That is, in fact, how the federal courts have largely approached it. Most school nurses won’t give your kid an aspirin without your consent out of fear of litigation from Reye’s Syndrome complications … but have no qualms about referring your daughter for an abortion without your knowledge. Medical standards that apply to all sorts of other outpatient ambulatory surgical facilities suddenly become impermissible when applied to abortion clinics. Where is the real “war on women” going on?—in Republican power corridors or in the abortuary abattoirs?

There’s one more disturbing aspect of the Fifth Circuit’s decision: its notion of “delegation.” Mississippi defended its law by noting that it was not shutting down the Jackson clinic; it was the inability of clinic personnel to obtain the required admitting privileges that rendered them unqualified to operate it. Mississippi women who wanted abortions could still go elsewhere.

But the Court’s quest to preserve Mississippi’s last remaining feticide clinic led it concluding that the State was engaged in an impermissible sloughing off of its responsibility “to accept the burden of the non-delegable duty of protecting the established federal constitutional rights of its own citizens.” If confronted with the choice of enforcing a facially neutral medical requirement and protecting a substandard abortion clinic, the Court told Mississippi it had to do the latter.

This is, of course, on a direct collision course with Roe et al. v. Wade. There, the Court invented an abortion liberty from the gaseous emanations of the “right of privacy.” But, in Roe, the right was protected between woman and physician; the decision said nothing about the State having to facilitate it. The state could even have its own “theory of life,” as long as it did not interfere with limiting abortion. What the majority in Jackson Women’s Health Organization v. Currier concludes is that the State has a positive duty to make abortion available. This is the same shift involved in the move from Clintonian lip service about abortion being “safe, legal, and rare” to Obama’s policies of “safe, legal” and subsidized.

We heard “delegation” language before. In Planned Parenthood v. Danforth (428 U.S. 52), the Supreme Court struck down a Missouri law requiring paternal consent to abortion. Because the State could not prohibit abortion, Harry Blackmun wrote, it could not “delegate” that veto power to a father.

The obvious answers to such ludicrous jurisprudence are that a father is not an agent of the State and that there are rights that are antecedent to and independent of the State. But, when it comes to abortion jurisprudence, the federal courts apparently deem abortion—to borrow Nancy Pelosi’s blasphemy—the “sacred ground” of an über-Recht which States not only must not prevent but apparently even positively facilitate. Even when it involves tolerating substandard medical conditions that represent a real war on women.

One report describing Jackson Women’s Health (which contains a link to the decision) was entitled “Last Abortion Clinic in Mississippi May Be Spared.” I’d rather spare Mississippi’s women.

Editor’s note: Pictured above is the John Minor Wisdom U.S. Courthouse, home of the United States Court of Appeals for the Fifth Circuit in New Orleans, Louisiana.

John M. Grondelski


John M. Grondelski (Ph.D., Fordham) is former associate dean of the School of Theology, Seton Hall University, South Orange, NJ. All views expressed herein are exclusively his own.

  • BillinJax

    Brilliantly written article Professor Grondelski.
    What can you tell us of the three, at least two, misguided judges in this case. All white men?
    Somehow intimidated by the wrath of Ruth Ginsberg? Appointed by Democrats?

    • John Grondelski

      I have demurred from saying “Judge X, appointed by Y” because I believe judges should not be beholden to partisan politics, but since there seems to be two different litmus tests for judges (Ruth Bader Ginsburg gets away with statements appropriate to partisan counsels that would elicit howls about lack of judicial temperment if on the lips of an Alito), so: majority was Jolly (appointed by Reagan) and Higginson (appointed by Obama). Minority was Garza (appointed by GHW Bush)

  • somnipod

    It’s so obvious that white liberal progressives can’t stand the idea of losing abortion mills in minority areas.
    Why is nobody calling out planned parenthood (founded by racist eugenicist Margaret Sanger) for continuing the eugenics push?

  • publiusnj

    The Court’s contention that the State of Mississippi has “to accept the burden of the non-delegable duty of protecting the established federal constitutional rights of its own citizens” is a loose unsupportable statement. Mississippi ought to be able to appeal on the basis, among others, that this theory is an inappropriate imposition on the independence of the State by unelected federal judges who have no authority to enlist the State in the very dubious business of “protecting a federal right” that most of the people of Mississippi do not want to protect. While the State may not interfere inappropriately with federal rights, it certainly does not have a duty to protect those rights. Particularly not if the State believes the “federal right” an awful thing that ignores the humanity of the baby in the womb. In case anybody wants to quibble with the term “baby” look at the page 1, July 6, 2014 NY Times Article entitled “Couples Coming to US for Baby and Womb to Carry It.”
    ( )
    The article shows that the NY Times has no problem admitting the “fetus” in the womb is a baby, at least when its a “gay couple’s” bespoke baby that is being produced by a “hired womb” (i.e., a female surrogate).

    In addition to points on the appropriateness of State Medical requirements for hospital privileges based on the need for competent abortionists, Mississippi should also argue on appeal (or in a petition for reconsideration based on the court’s statement) that the Mississippi Legislature views “Abortion Rights” in the light of forty years of medical advances (e.g., sonograms) that show that a living human being is growing in the womb of the mother certainly within the first trimester of pregnancy (I assume that there is something in the legislative history record that could be cited).

    • Tamsin

      In the same way “equal protection” smuggled a redefinition of marriage by the government into law, we see that the “right to privacy” smuggled a redefinition of the humanity of the conceived child into law. In short, the child’s humanity was redefined to zero. Much less than three-fifths, I might add.

      The elemental fight is between the humanity of the baby and the humanity of the mother. Winner take all.

      The mother pre-exists the baby, and she claims her full humanity requires the baby’s humanity be zeroed out. And the Supreme Court agreed.

      Just thinking out loud.

      • publiusnj

        “She” didn’t claim the right to kill her baby, the Court following one set of litigants did.

        • Tamsin

          I’m not trying to mislead on the facts of the cases, or defend abortion. I’m detaching a little from the details and trying to get into the calculating mindset of it all to better understand how to refute it.

  • DE-173

    “Because the State could not prohibit abortion, Harry Blackmun wrote, it could not “delegate” that veto power to a father.”

    Inherent in this statement is the idea that all powers and rights come from the state. One could have easily writtten that since the state could not prohibit abortion, it has no power over abortion (as it does over lightbulbs and toilets), so it could not interfere in or arbitrate decisions about abortion.

    I remain convinced that the SCOTUS is little more than the Pharisees of statism, using lengthy tomes to advance the power of the state-sometimes not even cleverly, witness John Roberts’ inane of opinion of June 28, 2012.

    Harry Blackmun was like many Supreme Court “justices”, a clever wordsmith and a moral cretin.

    • NE-Observer

      One small correction re: “like many Supreme Court “justices”” – should read: “like left-wing liberal Democrat “Progressives””.

  • Watosh

    Yes that was a terrible decision, though the law it struck down if that law had stood, would still allow doctors to perform abortions. I know it would probably have restricted abortions which is laudable, but regretfully, that seems to be the best we can aim for. I fear we are losing ground.

  • Tamsin

    To recap, abortion has been deemed by the [big] State to be a right that is “antecedent to and independent of the [little] State,” and which must be provided for by the [little] State.

    Is there nothing the State cannot do for us? Such as grant us rights that are antecedent to it?

    The State says an unborn child is whatever the woman says it is, and she determines whether it lives or dies. Only by guaranteeing her right to kill, can the State guarantee her full humanity.

    At least this all makes greater sense of Nancy Pelosi’s attempt to describe abortion as a “sacred ground” on which women stand: women have a “sacred right” to be as invulnerable to pregnancy as a man. (What will the State do for transgender women? Perhaps they will have a sacred right to be as vulnerable to pregnancy as a non-transgender woman.)

    Is a “sacred right” the same as a “natural right”?

  • John Grondelski

    An update…
    on Monday, August 4, an Alabama federal judge appointed by Jimmy Carter applied the Fifth Circuit’s new affirmative action plan for abortion clinics by declaring Alabama’s requirement that physicians have admitting privileges to hospitals unconstitutional because, among other things, it would reduce the number of abortuaries in the State from five to three. (See National Right to Life News for information on the trial). The real war on women and children continues…..

  • John Grondelski

    The Mississippi Attorney General just announced an intention to appeal the three judge panel’s ruling to a full en banc hearing by the Fifth Circuit, whose panels have split on this question (e.g., upholding a TX law similar to the MS law struck down — although another federal judge is now busy thinking how to nullify the TX law).