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


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

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