Admitting privilege requirement unconstitutional, appeals court rules



A law that requires abortion providers in Mississippi to have hospital admitting privileges was ruled unconstitutional by a panel of judges in the U.S. 5th Circuit Court of Appeals, effectively keeping open the state’s lone abortion clinic in Jackson.

The 2-1 ruling notes that the ultimate issue "is whether the State of Mississippi can impose a regulation that effectively will close its only abortion clinic. ... 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 50 states – to accept the burden of the non-delegable duty of protecting the established federal constitutional rights of its own citizens."

Dr. Jeanne A. Conry

Jackson Women’s Health Organization, the state’s only licensed abortion clinic, challenged the April 2012 law that required all physicians who perform abortions at an abortion facility to be board-certified or board-eligible ob.gyns. with staff and admitting privileges at a local hospital. The law also required that a person trained in CPR must be present at the abortion clinic whenever it is open.

According to the ruling, one of the three doctors at the clinic had admitting privileges. The two others were unable to get privileges at any of the seven local hospitals. Cited reasons included "[t]he nature of your proposed medical practice is inconsistent with this Hospital’s policies and practices as concerns abortion and, in particular elective abortion," and "[t]he nature of your proposed medical practice would lead to both an internal and external disruption of the Hospital’s function and business within this community."

Although not specifically commenting on this case, the American College of Obstetricians and Gynecologists has in general advocated against the imposition of admitting privileges requirements on doctors working at abortion clinics.

"Admitting privileges legislation would impose stricter requirements on facilities where abortions are performed than on facilities that perform much riskier procedures, including those that use general anesthesia," Dr. Jeanne Conry, immediate past president of ACOG and assistant physician in chief at Kaiser Permanente in Rosedale, Calif., said during a telebriefing in May. "As an example, the mortality rate associated with a colonoscopy is more than 40 times greater that that of abortion, yet gastroenterologists face no restriction of their practice in the context of ‘safety.’ "

Senate Democrats are pushing a bill that would overturn most state restrictions on abortion services.

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