UPDATED Monday 5:16 p.m.  A federal judge in Montgomery, Ala., on Monday struck down an Alabama law with the same requirement that doctors performing abortions have professional privileges at nearby hospitals.  Senior U.S. District Judge Myron H. Thompson ruled that the effect of the law would be to force the closing of three of the five abortion clinics remaining in the state, thus imposing a major burden on women’s rights to abortion.  Those three clinics perform some forty percent of all abortions in Alabama.  The judge’s opinion is 172 pages long.

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In a ruling that is likely to mean that the only abortion clinic still operating in Mississippi will not have to close, the U.S. Court of Appeals for the Fifth Circuit ruled on Tuesday that a two-year-old state law regulating clinics cannot be enforced against that facility in the city of Jackson.  The ruling, dividing the panel two to one, is here.

The ruling clearly limits, but does not totally bar, a state’s attempt to shift the practical availability of abortion services to its neighboring states.  Mississippi officials had argued that, even without a clinic inside the state, women seeking abortions could get that service by traveling to Alabama, Lousiana, or Tennessee, within only a few hours’ drive.

The ruling was the latest in a series by federal court decisions reacting to a new round of laws seeking to limit abortion services, and it was the second — with a different outcome — by this appeals court on a law requiring doctors who perform abortions to have professional privileges at a nearby hospital.  A Texas law with nearly the same requirement was upheld by the Fifth Circuit in late March.

In Texas, the panel majority noted in the new ruling on Tuesday, other clinics would remain open even if the hospital privileges requirement forced some of them to close.  In Mississippi, it noted, state officials had conceded that their privileges law would actually lead to the closing of the Jackson clinic, because the two clinic doctors who perform most of the abortions there have been turned down in seeking privileges at seven hospitals in that area.

The decision was based largely on a famous Supreme Court decision in 1938 that was a part of the civil rights campaign to end racial segregation in public education — the decision in Missouri ex rel. Gaines v. Canada, overturning the University of Missouri’s law school’s bar to black students.

In that case, the university told a black student seeking admission that he could get tuition support from the state to go to a law school in another state.  That precedent, the Fifth Circuit majority said in the new abortion regulation case, stands for the proposition that “a state cannot lean on its sovereign neighbors to provide protection of its citizens’ federal constitutional rights.”  That principle, it added, “obviously has trenchant relevance here.”

The Gaines ruling, it added, “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 rights within Mississippi’s borders.”

The panel majority went on to conclude that it would be an unconstitutional burden on Mississippi women seeking abortions to require them to go elsewhere for that procedure.

However, in response to an argument by the state that a ruling reaching that result would mean that a state could take no action that had the effect of closing all abortion clinics in a state, the majority stressed that it was only ruling that the hospital privileges law could not be enforced against the remaining clinic in Jackson, and was not intended to be broader than that.

A federal district court judge earlier had issued a broad order against any enforcement of the privileges law, but the Fifth Circuit said that went too far, and it modified the order so that it only protected the Jackson facility.   This, it stressed, was a case involving a challenge to the state law only as it applied in practice to the Jackson clinic.

Circuit Judge E. Grady Jolly wrote the majority opinion, joined by Circuit Judge Stephen A. Higginson.  Senior Circuit Judge Emilio M. Garza filed a dissenting opinion.

Judge Garza argued in dissent that, if the clinic in Jackson did have to close, that would be the result of private decisions made by local hospitals in refusing privileges to clinic doctors, rather than action by Mississippi.  But the judge also contended that, even if closing would be the result of the state law, it would not be an undue burden for women to travel to other states to get abortions, and he noted that the constitutional right to travel gives them that option.

He disputed the majority’s claim that its ruling was narrowed to apply just to the Jackson clinic, asserting that it announced a “jarring” result that in reality would make it unconstitutional for any state to take an action that resulted in closing all abortion clinics within that state.

The dissenting opinion also denounced the majority’s reliance on the civil rights decision in the Gaines case, saying that it had nothing to do with abortion rights and was based upon entirely different constitutional principles.

In addition, Judge Garza used the closing pages of his opinion to sharply criticize the Supreme Court’s 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey – which basically reaffirmed the right to an abortion — for having announced a “standard-less standard” on how to judge abortion restrictions, for having relied upon “perverse logic,” and for having given judges a chance to fashion constitutional rules according to their own personal preferences about public policy.

The dissenting judge expressed a yearning for “a return to legal theory that recognizes principled limits.”

 

Posted in Cases in the Pipeline, Featured

Recommended Citation: Lyle Denniston, Last abortion clinic in Mississippi may be spared (UPDATED), SCOTUSblog (Jul. 29, 2014, 3:30 PM), http://www.scotusblog.com/2014/07/last-abortion-clinic-in-mississippi-may-be-spared/