W00t! Sole Miss. abortion provider stays open, rules CA5

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.

(3) Panel 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.

So we went to see “Lucy”

Luc Besson was discontented. Using 10% of his brain, he could make great action flicks. But he wanted more! So he made Lucy, where Scarlett Johansson’s character achieves superhuman powers by using more/most/all of her brain. Never mind that the whole “10% of your brain” is a canard; it makes as much sense as super-soldier serum or radioactive spider-powers.

No, Lucy is about style, a few fun sequences, and (in the first half) watching Scarlett move from taking shit to kicking ass. Like Harvey the pooka, she overcomes not only space and time, but any objections.

Unfortunately for those of us stuck at 10%, Lucy becomes too sophisticated to care about the trappings of her action plot; she transcends time and space, but also plot and character, leaving us behind with a bit of a mess.

Scarlett J is of course a natural at the aloof, uninvolved heroine whose thoughts are a mystery. The film makes a companion to Under the Skin, where she plays a similarly remote character. And oddly, both movies end up with weird violence against SJ’s body, not merely harming it but obliterating it. There’s a film-studies paper to be written there. As a flick tho, Lucy‘s dissatisfaction with itself left me a little flat.

The movie shelf

July is the cruelest month, because that’s when Barnes & Noble runs its 50% off on the (grossly overpriced) Criterion Collection DVDs and blu-rays. I can resist everything except temptation. Here are some trivial thoughts on classic movies.

Purple Noon (Plein Soleil), Criterion blu-ray: I only thought I had seen color movies before I saw this. Wow. Southern Italy seems more real than real life in this beautifully filmed movie about an ugly-acting trust-fund American abroad and the hanger-on whose envy drives the plot. Fans of Highsmith’s The Talented Mr. Ripley, of whom I’m one, will find much to lament in the movie’s divergence from the author’s cool amoralism. But even so, it’s still better in spirit than that sad-ass Matt Damon film, and taking the movie on its own terms, it works. Alain Delon is perfectly cast, and Marie Laforêt, new to me, was a revelation. (Why the silly title? Wouldn’t Broad Daylight have been both accurate and true to the central crime of the film?)

Repulsion, Criterion blu-ray: yes, there’s a reason to get black & white films on blu-ray. The closeups of the increasingly deranged Catherine Deneuve are crucial to the film, and they’ve gotta be sharper here than they would on DVD. This 1965 film could’ve seemed dated, premised as it is on the mental breakdown of a “frigid” woman; but in 2014, I saw it as a woman whose fragile mind was snapped by the sexist society that expects her to be available to the same men whom it tells her are filthy beasts. And god knows, her victims’ behavior is such that she’d have a good shot in court, at least if she were able to tell her own story by that point …. I can’t claim to have seen a lot of movies about people going crazy, but Deneuve is absolutely convincing. A thriller that continues to startle (I jumped a couple of times). … Why am I watching a Polanski movie? I don’t buy into the complete divorce of life & art, but at least for the films before Polanski’s rape of that teenager, I can rationalize that he wasn’t the criminal yet. Couldn’t avoid thinking about his future during some scenes in the film, though.

Contempt (Le Mépris), Lionsgate blu-ray: this was the first Godard that I saw, on the (kind of) big screen at Film Forum when what I guess was the restored cut was released back in the 90s. Contempt probably should not be anyone’s first Godard; I had no idea what he was up to, and resented the violent ending especially. I won’t pretend to be a Godard expert, but I at least am awake to his fuck-you style now. The sarcastic obsession with red/yellow/blue colors (because this is a COLOR film by god) … the in-your-face Bardot nudity at the front (only slightly less blatant “showing one’s ass” than what Sofia Coppola did at the beginning of Lost in Translation), and how he keeps playing with “ooh, nudity!” throughout the pic … the insouciance towards plot. Now I think Godard ended it the way he did because he liked how the color of the blood matched that of the automobile. The best part is probably the domestic quarrel between the scriptwriter and his wife (Bardot), for part of which Bardot wears a black wig just to remove any doubt she was a stand-in for Godard’s wife in that scene. Even a lug like me became impressed with how the camera moved around the apartment layout. Anyway, I’d watch Breathless or Vivre Sa Vie first if new to Godard, but this is worth a look.

MEC on the smartphone

Mississippi lawyers question: I cannot get any MEC PDF to load correctly on my iPhone 5. I’ve downloaded the Adobe Reader app, but can’t get Safari to recognize it. Anyone know a clever fix here? Damn nuisance to see a pleading in your email & then not be able to read it. Thanks!

Judicial understatement of the week

Jane is liveblogging the sad spectacle of the hapless attorney who was late for his first show-cause hearing, didn’t comply, and is now facing the en banc Mississippi Supreme Court at his second show-cause hearing (for which he was on time).

No attorney should be so cocky as to think a bad personal life couldn’t throw his practice into a tailspin, so I really don’t mean to make fun of this guy. That said, had to quote this from Jane’s coverage:

M.W. – When I first started practicing I did miss some hearings but that was some time ago. But I keep my own calendar.
J. Kitchens – Well, that doesn’t seem to be working for you.