The recent decision of the United States Court of Appeals for the Fifth Circuit in Jackson Women’s Health Organization v. Currier, again illustrates how endangered a woman’s reproductive freedom is in today’s climate. The Court struck down a law that required doctors performing abortions in a clinic to obtain hospital admitting privileges. The crucial ruling allowed the last remaining abortion clinic in Mississippi to remain open, stating that Mississippi could not rely on its “neighbors to provide protection of its citizens’ federal constitutional rights”. The ruling is limited and such rights as those to safe and legal abortions or contraceptive coverage are subject to the vicissitudes of a random panel of individuals who put their own substantive moral views ahead of the constitutional rights of women.
The divided court in Jackson reached the right result: closing down the only abortion clinic in a state is clearly an “undue burden” on a woman seeking to legally terminate her pregnancy and therefore clearly unconstitutional.
What is frightening in Jackson is not the majority opinion, but the dissent. The dissenter charged the Supreme Court and any Judge or Justice who ever challenged an abortion restriction as a heretic who should be burned at the stake.
As I have recounted in a recent article on the subject, “Reproductive Justice in the New Millennium”, originally published in the William & Mary Journal of Women and the Law (Volume 20, Issue 1, Fall 2013, William & Mary Law School), abortion was legal from the time that Nero fiddled until the beginning of the twentieth century. Regulation came about only to insure patient safety, but, unfortunately changed for the worst and morphed into a purported “moral issue.”
The late Professor Cyril Means, who served as a member of the distinguished panel in New York that would lead to the liberalization of its abortion laws and whose writings were featured in the Roe v. Wade opinion, stated clearly that any understanding of the history in this country invalidates objections to legalized abortion.
“Those who cannot remember the past are condemned to repeat it.”