July 7, 2012 8:22:19 PM
JACKSON -- Attorneys for the state of Mississippi are trying to persuade a federal judge to let a restrictive new abortion law to take effect, while those representing the state's only abortion clinic are asking the judge to extend the temporary hold he put on the law.
The opposing sides filed their latest court documents Friday, a deadline set by U.S. District Judge Daniel P. Jordan III.
Jordan issued an order Sunday stopping the state from immediately enforcing a law that requires physicians performing abortions at the clinic to have privileges to admit patients to a local hospital. The order came the same day the law was supposed to take effect.
The judge will hold a hearing Wednesday in Jackson to consider whether to extend that order.
The clinic, Jackson Women's Health Organization, filed a lawsuit June 27 seeking to stop the law from being used. The clinic says the law could put it out of business and deny women access to a constitutionally protected procedure.
The clinic's attorneys, Robert McDuff of Jackson and Michelle Movahed of the Center for Reproductive Rights in New York, argued in papers filed Friday that the clinic will face irreparable harm if the state is allowed to enforce the law.
The clinic said Friday it does not know when, if ever, it would be able to get hospital admitting privileges for its two out-of-state physicians who do abortions.
"If all of the local hospitals deny privileges, it will then be even more clear that the act has not only the purpose, but the effect, of denying reproductive freedom to the women of Mississippi," the clinic's attorneys wrote.
Two Mississippi special assistant attorneys general, Benjamin Bryant and Roger Googe, wrote that the law is designed to protect patients.
"The state has substantial reason for concern regarding the health and safety record of Jackson Women's Health Organization," the state attorneys wrote.
The state attorneys wrote that Diane Derzis, who owns Jackson Women's Health Organization, also owned a clinic in Alabama that was shut down because of health violations.
"Inspection reports compiled by the Alabama authorities contain evidence that clinic staff failed to respond to complaints of post-surgical complications," the Mississippi attorneys wrote. "Derzis resolved the matter with the state of Alabama by entering into a consent order in which she agreed not to run the clinic."
Derzis told reporters Monday in Jackson that since 2010 when she acquired Jackson Women's Health Organization, there has been no need to call an ambulance to the clinic because of complications from abortions. She said she would call an ambulance, if one were needed.
Jack L. Wilson, an attorney for Republican Gov. Phil Bryant, filed separate papers Friday, also arguing that the new law should be allowed to go into effect. The governor's filing said Bryant signed the law as a way to protect women's health. The filing acknowledged that Bryant said the day he signed the bill into law that "If it closes that clinic, then so be it."
"Put simply, the governor is not concerned that enforcement of a valid, medically justified licensure requirement may result in the closure of a clinic that does not comply," Wilson wrote. "But Governor Bryant's lack of sympathy for the abortion clinic is hardly a reason to strike down the requirement."
The assistant attorneys general also argued Friday that even if the law goes into effect, the clinic would not be shut down immediately because it would get at least 60 days to comply with the law, under normal administrative procedures. Hinds County District Attorney Robert Shuler Smith, who is named as a defendant in the lawsuit, said in court papers earlier that he would not pursue criminal charges against the clinic during the administrative period allowed for compliance.
The clinic argued Friday that if it is allowed to remain open and the law is in effect, it might eventually face retroactive penalties if it can't obtain admitting privileges for its physicians.
"Citizens should not be required to disobey a statute in order to exercise their rights under the United States Constitution," the clinic's attorneys wrote. "Given that the admitting privileges requirement is likely unconstitutional, it should be enjoined so that the plaintiffs are not in the position of having to close or having to knowingly disobey the statute as the price for staying open."
Mississippi physicians who perform fewer than 10 abortions a month can avoid having their offices regulated as an abortion clinic, and thus avoid restrictions in the new law. The Health Department said it doesn't have a record of how many physicians perform fewer than 10 abortions a month. Clinic operators say almost all the abortions in the state are done in their building.
The clinic says if it closes, most women would have to go out of state to terminate a pregnancy, and that could create financial problems for people in one of the poorest states in the nation. From Jackson, it's about a 200-mile drive to clinics in New Orleans; Mobile, Ala.; or Memphis, Tenn.
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