This past March a three-judge, all female panel from the 5th Circuit Court of Appeals unanimously upheld a Texas statute requiring abortionists to have admitting privileges at hospitals within 30 miles of an abortion clinic.
The court rejected the abortion industry’s claim that such a law would create an “undue burden” for abortion-minded mothers if it had the effect of closing down clinics. Justice Edith Jones wrote in the majority opinion:
[A]n increase of travel of less than 150 miles for some women is not an undue burden under Casey. Indeed, the district court in Casey made a finding that, under the Pennsylvania law, women in 62 of Pennsylvania’s 67 counties were required to “travel for at least one hour, and sometimes longer than three hours, to obtain an abortion from the nearest provider.”…
[T]he Supreme Court recognized that the 24-hour waiting period would require some women to make two trips over these distances…[but] did not impose an undue burden. We therefore conclude that Casey counsels against striking down a statute solely because women may have to travel long distances to obtain abortions.
But yesterday, a three judge, all male panel from the same 5th Circuit Court of Appeals ruled 2-1 against a Mississippi law requiring abortionists to have admitting privileges at hospitals within 30 miles of an abortion clinic. The opinion stated such a law would place an “undue burden on a woman’s right to choose an abortion in Mississippi” – “in Mississippi” being the operative words.
Even though the latter three justices understood they were countermanding the “virtually identical law” their court had just upheld in Texas, the difference, they said, was that under discussion was the lone abortion clinic remaining in Mississippi.
The majority therefore concluded it would place an “undue burden” on a pregnant Mississippi mother to force her to cross state lines to obtain an abortion.
Thus, an abortion clinic five miles from one’s home but in another state is an “undue burden,” but a clinic 150 miles away but in the same state is not, so has determined the 5th District Court.
New court edict: Minimum of one abortion clinic per state?
One might logically conclude the court’s new “one clinic” threshold would block Mississippi or any other state from passing or enforcing any law that would have the effect of closing its last remaining mill.
This is a new legal phenomenon, since the dwindling number of abortion clinics has now rendered five states in such a predicament. The court responded to logic in its decision:
[T]he State argues that our opinion would preclude the State from closing the Clinic for sanitation violations because, like H.B. 1390, such action would impose an undue burden on the right to an abortion by closing the only clinic in Mississippi.
Nothing in this opinion should be read to hold that any law or regulation that has the effect of closing all abortion clinics in a state would inevitably fail the undue burden analysis.
But the court didn’t provide any guidelines as to what sort of law it would consider acceptable. It’s a crap shoot. Nor did it explain how closing a clinic for sanitary violations to protect the health and safety of women is good, but forcing abortionists to provide continuity of care in hospitals to patients they injure is not.
One also wonders how the court would react if another clinic opens in Mississippi? Would the state then be allowed to enforce this law, just so long as the lesser of two substandard abortion clinics remains operational?
Supreme Court game on?
Abortion proponents are jumping for joy at yesterday’s decision, one proclaiming “game over.”
Not so fast. All this decision means is it is ever more likely the question whether admitting privileges places an “undue burden” on abortion will end up before the Supreme Court. According to MSNBC:
Federal courts have been split on the broader question of admitting privileges laws, and whether they violate a woman’s right to an abortion by shutting down clinics. In November, the Supreme Court signaled it had the votes to accept the case and resolve that question.
At that time, in regard to the Texas admitting privileges case, according to MSNBC:
All five of the Justices appointed by Republican presidents, including Justice Anthony Kennedy, joined in the order to let the law go forward; all four of the Justices appointed by Democrats said they would have waited until the court had fully considered its constitutionality.
That’s a pretty positive signal.
In a stinging dissent of the Mississippi ruling, Judge Emilio Garza (pictured right) pretty much outlined our side’s case, noting numerous holes and illogic in the majority opinion:
Mississippi had previously required all doctors affiliated with outpatient ambulatory surgical facilities to have admitting privileges at a local hospital, but expressly exempted Level I abortion facilities….
H.B. 1390 eliminated this exemption…. Critically, however, the Act neither directly closes the Clinic, prevents the Clinic’s physicians from obtaining admitting privileges nor authorizes the State to intervene in the hospitals’ decision-making.
Moreover, the Act, as the majority correctly holds, is amply supported by a rational basis…. The admitting-privileges requirement both strengthens regulation of the medical profession and protects maternal health…. In sum, the purpose of H.B. 1390 is to protect women seeking abortion services from the known risks of complications….
“The 5th Circuit actually lowered the standard of care for abortion mills,” observed Operation Rescue’s Troy Newman in an email. “Doesn’t that leave women with an undue burden to a botched abortion?” More from Garza:
Applying Casey, a panel of this Court recently concluded that “an increase of travel of less than 150 miles for some women is not an undue burden….” The majority gives these binding principles a passing nod before setting them aside for the sole reason that this case happens to involve the crossing of state borders….
Casey did not contemplate whether the availability of abortion in neighboring states affects the undue burden analysis….
In 2011, prior to the Act’s passage, nearly 60% of Mississippi women who obtained abortions already traveled to other states for those services. Thus, the Act would likely not impose any undue burden on their access to those very same out-of-state providers….
Decision creates “patchwork system” court feared
The majority also echoes the district court’s fear of a “patchwork system where constitutional rights are available in some states but not in others.”… [T]he majority has unwittingly instituted its own “patchwork system”: 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…. This result is logically and practically untenable - all the more so in regions where populations are denser and urban areas often straddle state borders….
Lastly, the 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. The Majority’s conceptual approach runs headlong into the well-established “constitutional right to travel from one State to another.”…
“Cannot have it both ways”
The majority concludes by denying that it establishes any per se rule. “Nothing in this opinion,” the majority declares, “should be read to hold that any law or regulation that has the effect of closing all abortion clinics in a state would inevitably fail the undue burden analysis.”…
The majority simply cannot have it both ways. So long as the undue burden analysis is confined by Mississippi’s borders, the closure of that state’s sole abortion provider must be an undue burden….
Even accepting that the majority’s factors somehow narrow its holding, I find its ad hoc approach to be unworkable…. The message for future courts and litigants is that a law causing the closure of all abortion providers in a state imposes an undue burden - unless it does not impose such a burden. The use of such an unprincipled approach to strike down as unconstitutional a state’s exercise of its sovereign power to protect its citizens is particularly troubling….
Despite the majority’s attempt to narrow its reasoning, today’s opinion can only be read to mean that a law or regulation causing all of a state’s abortion providers to close, such that women must cross a state border to obtain abortion services, imposes an unconstitutional undue burden on the abortion right.
UPDATE 7/31 9:20a: See also, “This is what judicial abomination looks like,” at RedState.com.
[Top image via Los Angeles Times]