Fifth Circuit Opts to Aid and Abet Dangerous Abortion Business at the Expense of Women’s Lives

By Cheryl Sullenger

Jackson, MS – The Fifth Court of Appeals in a 2-1 decision has issued a bizarre ruling that forces the State of Mississippi to keep open a private, for-profit abortion business even though its substandard practices admittedly pose a danger to the health and safety of women.

The Fifth Circuit decision upholds a preliminary injunction that is keeping provisions of HB 1390, an abortion law similar to one passed in Texas, from being enforced because those provisions would close the only remaining abortion facility in that state, the Jackson Women’s Health Organization, owned by the notorious Diane Derzis.

The ruling stated, “Mississippi may not shift its obligation to respect the established constitutional rights of its citizens to another state. Such a proposal would not only place an undue burden on the exercise of the constitutional right, but would also disregard a state’s obligation under the principle of federalism —applicable to all fifty states — to accept the burden of the non-delegable duty of protecting the established federal constitutional rights of its own citizens.”

“Mississippi’s law is not banning all abortions in that state. Surely if another facility could comply with the law, it would be allowed to stay open,” said Operation Rescue President Troy Newman, who first suggested some of the challenged provisions be included in HB 1390.

“What is being missed here is that the one facility left in the state is engaged in substandard practices that endanger women. Would the Court think that if Kermit Gosnell operated the last abortion clinic in Mississippi, that the state would be forced to keep him in business? Diane Derzis’ shoddy abortion practices that have been documented to endanger women are little better. The Court was concerned that irreparable harm would come to Derzis’ abortion business if it was forced to close, but it seems it failed to consider the irreparable harm done to women who are exposed to shoddy abortions done by her primary abortionist Bruce Norman, who has a long history of hurting women. Shouldn’t protecting women from back-alley practices by abortionist who cannot qualify for hospital privileges trump protecting Derzis’ profit margin?”

Derzis and Norman were ordered by an Alabama court to shut down their abortion business in Birmingham after it was found to pose a danger to the public, and later, to be operating illegally. Those same practices that forced Derzis’ out of Alabama, are present at her Mississippi facility.

In what amounts to gymnastics in the rules of logic, the Court admits that the Mississippi law meets constitutional requirements on its face and is not substantially different from Texas’ HB2, which was found to meet constitutional muster by the Fifth Circuit last year. Nevertheless, the Mississippi law was found unconstitutional only because Mississippi would be left with no abortion facility. While the Court ruled that traveling 150 miles inside the state borders of Texas to receive an abortion was constitutional, it ruled that women who drive shorter distances through Mississippi to obtain abortions in neighboring states is unconstitutional.

This begs the question of whether the state can be required to open an abortion business if all private abortion businesses make decisions to close.

The Court also inexplicably used a Missouri Equal Protection case that applied to a state-run university to further bolster its Mississippi ruling. That cased involved the denial of admission to the University of Missouri’s law school – a state-run institution – to a black student. Instead, the University offered the student a state-funded tuition stipend to attend law school in another state. The U.S. Supreme Court ruled that this practice was unconstitutional because it essentially prohibited black students from attending Missouri’s law school in that state. [Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938)]

“A situation of a state institution employing racially discriminatory practices is much different than that of a private business that poses a health risk to the public. Again, the state isn’t saying no abortions can ever take place, but only that the licenses of dangerous abortion business can be revoked in the interest of public safety. The Court is comparing apples with oranges and reaching a seriously flawed conclusion that is placing the lives and health of women at risk,” said Newman.

While yesterday’s Fifth Circuit ruling upholding the preliminary injunction keeps the Jackson Women’s Health Organization in business for now, a trial on the merits of the constitutional challenge to the law has yet to occur. Ultimately, this case is likely to end up in the U.S. Supreme Court for a final resolution.

In the meantime, there can be no doubt that women in Mississippi will continue to be placed in harm’s way due to two judges that have decided to insulate Derzis’ shoddy abortion business from culpability under the law.

Read the Decision
Read background of abuses at JWHO