On Tuesday, a federal appeals court ruled 2-1 that a Mississippi law that requires doctors performing abortions in the state to obtain admitting privileges at nearby hospitals is unconstitutional.
Signed into law in April 2012, HB 1390 is similar to measures passed in Texas, Wisconsin, and Alabama. Shortly before the law was set to take effect, the Center for Reproductive Rights, on behalf of the Jackson Women’s Health Organization and Dr. Willie Parker, challenged the law, arguing it unduly burdened abortion rights. A federal district court partially blocked the law in July 2012 and then later fully blocked it in April 2013.
Tuesday’s decision from the Fifth Circuit affirmed that decision blocking the law, but clarified that the scope of the ruling applies only to the plaintiffs challenging the Mississippi law at this time.
The Mississippi admitting privileges requirement is similar to a Texas law that a different panel of judges on the Fifth Circuit had previously upheld. But the difference in outcome between these two cases, according to a panel of judges Tuesday, hinged on whether or not Mississippi would lose its only clinic. The judges cited a 1938 Supreme Court decision, Gaines v. Canada, which held states cannot discriminate in the distribution of state services by relying on the availability of similar services in nearby states. “Gaines simply and plainly holds that a state cannot lean on its sovereign neighbors to provide protection of its citizens’ federal constitutional rights, a principle that obviously has trenchant relevance here,” the court wrote.
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The majority of justices who upheld the decision to block the admitting privileges requirement conceded that when looking at the constitutionality of the Mississippi law, if it factored in the availability of clinics in neighboring states, their conclusion that the law is unconstitutional would likely change. But, according to the court, for purposes of analyzing the impact of the targeted regulation of abortion providers (TRAP) requirement ,the correct course for the court is to only consider the impact of the law within that state’s borders. “We thus accept that, if these out-of-state clinics are properly considered in the undue burden analysis, the Act may well be upheld,” the majority wrote.
The court continued:
Pre-viability, a woman has the constitutional right to end her pregnancy by abortion. H.B. 1390 effectively extinguishes that right within Mississippi’s borders. Gaines locks the gate for Mississippi to escape to another state’s protective umbrella and thus requires us to conduct the undue burden inquiry by looking only at the ability of Mississippi women to exercise their right within Mississippi’s borders.
Nancy Northup, president and CEO of the Center for Reproductive Rights, applauded the decision in a statement, but noted that access to reproductive health care remains under threat in Mississippi. “Today’s ruling ensures women who have decided to end a pregnancy will continue, for now, to have access to safe, legal care in their home state,” Northrup said. “But there is still only one clinic in the entire state, and it is still threatened by a law advanced by politicians over the opposition of respected medical organizations, with the sole intent of closing that clinic permanently.”
Cecile Richards, president of the Planned Parenthood Federation of America, said in a statement, “This ruling is not only a victory for women in Mississippi but for women across the region, as similar laws threaten to decimate access to safe, legal abortion in the south. For example, if this law went into effect in Mississippi, a woman in Jackson could be forced to make a 350-mile round trip to the next-closest provider in Baton Rouge — where similar restrictions are scheduled to go into effect this fall.”
The burden of traveling hundreds of miles to a neighboring state did not bother all of the Fifth Circuit judges who considered the Mississippi law. Judge Emilio Garza dissented from the majority decision blocking the law, remarking that “the majority holds that the mere act of crossing a state border imposes an ‘undue burden’ on a woman’s right to choose to obtain abortion services.”
Garza’s dissent goes on to criticize the majority opinion for not considering the availability of clinics in neighboring states and for concluding that the Mississippi law, should it be enforced against the Jackson Women’s Health Organization, thus closing the clinic, would only have an “incidental effect” of making abortion less accessible. But more troubling is Garza’s response to reproductive health-care advocates who claim that laws severely restricting abortion access in states like Mississippi and Texas have the effect of creating a patchwork of constitutional rights, with women in some states effectively having more access to safe abortion care
than others. According to Garza, a state should be able to close, under the Constitution, all of the abortion clinics within its borders because a woman’s right to travel sufficiently protects her ability to access an abortion. “[T]he sole act of crossing a state border cannot, standing alone, constitute an unconstitutional undue burden on the abortion right because the Constitution envisions free mobility of persons without regard to state borders,” Garza wrote.
If all undue burden analyses must stop at state borders, the existence of an undue burden will depend, in part, on a plaintiff’s location relative to those boundaries. For instance, women in northern Mississippi who live a mere fifteen miles from the heart of Memphis, Tennessee, could never enjoin the closure of the clinic in that city, lest Mississippi be “excused from [its] performance.” But women just across the border in Tennessee could do so, if they demonstrate that the closure would impose an undue burden. This result is logically and practically untenable—all the more so in regions where populations are denser and urban areas often straddle state borders. The majority’s state-by-state undue burden analysis cannot be squared with the duty of all states to refrain from unduly burdening the right of “any person” to choose an abortion.
By Garza’s reasoning, the availability of any clinic anywhere in the country could preclude a court from finding an undue burden on abortion rights since residents in states with few or no clinics seemingly have the ability to travel for abortions when needed. But it is deeply cynical and intellectually dishonest to suggest, as Garza does, that women in Mississippi, right now, do not face an undue burden when accessing abortion care, compared to women in places like California, because abortion rights are federal rights.
Tuesday’s ruling is ultimately good news because it keeps open, for now, the state’s only abortion clinic. But there is not much to applaud in the Fifth Circuit’s reasoning, and there is plenty to be concerned about for future cases. To begin with, the court makes clear that the decision is limited to only the doctors challenging the Mississippi law at this time—meaning that should a new provider try to expand access in Mississippi, this fight could be re-ignited. Given that no hospital in the state would even process applications for admitting privileges, that future fight is a likely scenario.
Secondly, the decision affirms from Planned Parenthood v. Abbot (which upheld Texas’ admitting privileges requirement) that state restrictions on abortion access need only meet a “rational basis” standard, the lowest level of constitutional scrutiny applied to state restrictions of constitutional rights.
Lastly, even though the decision suggests that states cannot constitutionally target their only abortion clinic for closure, that conclusion is one the court quickly qualifies and retreats from in its opinion, leaving open the question of whether this conclusion will actually be a limiting principle on state power or not. Put another way: Even when the Fifth Circuit has the opportunity to affirm the fundamental constitutional personhood of women, it just can’t bring itself to do so.
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