Decision here. Op by Jolly, Higginson joins, Garza dissents.
(1) Staff-privileges issue foreclosed by the earlier panel in Abbott. No discussion whether the rule serves a rational basis.
(2) But rule can be rational & still impose an undue burden. State conceded below that reg would close only abortion provider in state, but pointed to surrounding states.
applies analogizes case to others where surrounding states not considered re: abortion availability, and looks also to Gaines, a case where Missouri couldn’t tell a black applicant for law school “oh we will pay for you to go to law school in another state.” Mississippi can’t delegate to other states its own obligation to avoid imposing an undue burden on abortion. [Paragraph edited per discussion in comments below.]
(4) So this was a successful “as-applied” challenge. Judge Jolly strongly indicated that the State should not pee in his hand and tell him “it’s raining”:
Here, we hold only that JWHO has demonstrated a substantial likelihood of proving that H.B. 1390, on this record and as applied to the plaintiffs in this case, imposes an undue burden on a woman’s right to choose an abortion. In reaching this determination, we look to the entire record and factual context in which the law operates, including, but not limited to, the statutory provision in question, the Clinic’s status as the sole abortion clinic in Mississippi, the ability of the Clinic to comply with H.B. 1390, Dr. Parker’s and Dr. Doe’s efforts to obtain admitting privileges, the reasons cited by the hospitals for denying admitting privileges to Dr. Parker and Dr. Doe, the absence of a Mississippi law prohibiting hospitals from discriminating against physicians who perform abortions when granting admitting privileges, and the nature and process of the admitting-privileges determination.
That said, an en banc Fifth Circuit could very well agree with Garza; this is an issue where some judges (like those on the Abbott panel) begin with their conclusion and reason back to first premises. Happily for women in Mississippi, Judge Jolly in this case chose not to be one of those judges.
… We should give Judge Jordan at the district court credit for his careful opinion that was affirmed today. Makes the appellate court’s job a lot easier when the trial court does a good job. And congrats to the Jackson clinic & its counsel … and to the doctors who endanger their own lives to the extent they legitimately feared even to be named in the court’s opinion.