Yesterday, a three judge panel (voting two to one) of the United States Fifth Circuit Court of Appeals struck down as unconstitutional Mississippi’s controversial law requiring that physicians who perform abortions maintain admitting privileges in a nearby hospital. The law, the court noted, would effectively result in the closure of Mississippi’s one and only abortion clinic, thereby forcing women in need of an abortion to travel to another state. Mississippi had argued that women seeking abortions would not be “unduly burdened” by the law, because they could just as easily seek those services in nearby Baton Rouge and New Orleans.
Ironically, however, due to the passage and enactment of Louisiana House Bill 388, an almost identical bill as the one in Mississippi, the abortion clinics in New Orleans and Baton Rouge will also be forced to close. This issue didn’t actually come up in the court’s most recent opinion, but it’s notable that Mississippi was actually “counting on” the clinics in Louisiana as a way of proving that their new law didn’t impose an “undue burden” on women seeking an abortion.
As a result of HB 388, the only two clinics in Louisiana that will be able to continue operations are in Shreveport and Bossier City, the top west corner of the state, nearly 350 miles and five hours away from New Orleans. Presumably, only two doctors in the entire State of Louisiana can meet the admitting privileges requirement in the new law. Furthermore, it seems obvious, particularly given Louisiana’s reliance on privately-held and Catholic-affiliated hospitals and the evisceration of the Charity Hospital system, that it will be practically impossible for any new physicians working in abortion clinics to receive the requisite admitting privileges.
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. 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. There is no hiding the relevant language in Gaines: “[N]o State can be excused from performance by what another state may do or fail to do.” Id.
Consistent with Gaines, we hold that the proper formulation of the undue burden analysis focuses solely on the effects within the regulating state—here, Mississippi. Under this formulation, JWHO has demonstrated a substantial likelihood of proving that H.B. 1390—effectively closing the one abortion clinic in the state—has the effect of placing a substantial obstacle in the path of a woman seeking an abortion in Mississippi, and is therefore unconstitutional as applied to the plaintiffs in this case.
Proponents of Louisiana’s identical law, including its sponsor State Representative Katrina Jackson, were quick to point out that the decision does not affect Louisiana’s law. A completely different set of circumstances, they said. Louisiana will still have two clinics up in Cowboy country; this was about Mississippi losing its only one.
But make no mistake: Louisiana’s law is nearly identical to the Mississippi law that was just struck down as unconstitutional as applied, and it is more likely than not that Louisiana’s law, once applied in Louisiana, will eventually force the closure of all of the state’s clinics as well. Again, the problem is that hospitals are disinclined from providing admitting privileges to physicians who perform abortions for a whole host of reasons- some financial, some political, some religious, some are just about public relations. And what happens when Louisiana’s only two doctors with admitting privileges decide to retire?
While abortion opponents, like Ms. Jackson, argue that Louisiana is not “similarly situated” as our neighbors in Mississippi and while anti-abortion legal activists suggest that the Fifth Circuit’s decision was “narrowly tailored” and hinged on a state’s inability to deny citizens access to a federal fundamental right, the majority opinion contains a well-placed footnote that should make people like Katrina Jackson pause for concern. Quoting Footnote 7 (bold mine):
7 A panel of this court embraced a similar theory in Okpalobi. The panel in Okpalobi held that a Louisiana statute imposed an undue burden because “[a] measure that has the effect of forcing all or a substantial portion of a state’s abortion providers to stop offering such procedures creates a substantial obstacle to a woman’s right to have a pre-viability abortion, thus constituting an undue burden under Casey.” Okpalobi, 190 F.3d at 357. The panel opinion in Okpalobi was later vacated on jurisdictional grounds. Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001) (en banc).
To be sure, the distance required to travel to receive treatment is, in and of itself, not considered by the Fifth Circuit to be an “undue burden.” But interestingly, earlier this year, in a case about the similar law in Texas, the court held (bold mine):
As the motions panel correctly concluded, based on the trial court record, an increase of travel of less than 150 miles for some women is not an undue burden under Casey.
Planned Parenthood of Greater Texas Surgical Health Servs. v. Abbott, 748 F.3d 583, 598 (5th Cir. 2014).
Put another way, the court rationalized that travel under 150 miles could not be considered an undue burden.
In Louisiana, however, under the bill sponsored by Katrina Jackson and signed into law by Governor Bobby Jindal, the vast and overwhelming majority of Louisiana residents seeking an abortion would be required to travel twice as far as what the same court held as reasonable, under the same type of law. And I don’t think it’s a stretch to say this affects “a substantial portion of the state’s abortion providers,” considering we are shutting three of the state’s five clinics, all three in communities that, collectively, represent and serve well over 60% of the state’s population and keeping two clinics on the very northwest corner of the state in communities that represent less than 10% of the population, hundreds of miles and hours away from where most folks live in Louisiana.
From the very beginning, I’ve argued that these laws, particularly Louisiana’s law, are unconstitutional because they are purposefully designed to create an undue burden for women seeking to exercise a federal fundamental right that has been recognized for more than forty years. They have nothing to do with protecting a woman’s health and almost everything to do with scoring cheap political points. The Fifth Circuit, in the case about Texas’s law, declared that “physician continuity” was a rational basis for the law, but that’s just dishonest rhetorical gamesmanship. These laws don’t ensure physician continuity; if anything, they undermine the patient/doctor relationship.
I understand that, for a great many people, abortion is an intensely personal, emotional, religious, and moral issue, and I have no desire to get into a big, nasty debate about abortion. As a wise man once said to me, “I’ve never met anyone who is pro-abortion.” It’s a false debate. It’s been settled law in this country for more than forty years, and I think, for the most part, our laws strike a good balance. States can impose certain restrictions and requirements, so long as they don’t unduly burden access. It should be fairly simple, and we should expend our precious energy doing what we can to promote and foster a quality of life for all citizens- health care expansion, prison reform and eliminating draconian mandatory minimum sentences for low-level drug crimes, real educational and vocational reform, jobs, infrastructure, the arts, development projects, the nitty-gritty work. That’d do more than anything else in reducing abortions and ensuring that, to quote President Clinton, “they are safe, legal, and rare,” which should be the goal of any decent, independent American.