On Tuesday, the Fifth Circuit Court of Appeals struck down a Mississippi law that would have required abortion providers to have admitting privileges at a local hospital. This law, if enforced, would have likely shut down Mississippi’s lone abortion clinic. What is disappointing for pro-lifers is that the same court recently upheld a similar law passed in Texas last summer. Overall, it seems that courts are willing to uphold greater regulations of abortion clinics, but somewhat arbitrarily strike down laws that would have the practical effect of closing “too many” clinics. It is not clear what will happen next, but there is a possibility that the Fifth Circuit’s ruling may be appeared to the Supreme Court.
This case was heard by a panel of three judges. Judges E. Grady Jolly and Stephan A. Higginson voted to strike down the Mississippi law and Judge Emilio Garza dissented. Justice Garza’s dissent is worth reading. He makes some very good points and skillfully points out the flawed legal reasoning in the majority opinion. His dissent focuses on how this decision misapplies precedents set by two Supreme Court cases, Casey v. Planned Parenthood and Missouri ex rel. Gaines v. Canada.
It’s not surprising that the majority cites the Casey decision. Casey upheld the right to an abortion but stated that states could regulate it provided the regulation did not pose an “undue burden” on women seeking abortions. The Fifth Circuit’s opinion states that a law that would close the last abortion clinic in the state would pose an undue burden for women seeking abortions. The phrase “undue burden” has been interpreted by different courts to mean different things, so perhaps that part of the ruling is unsurprising.
What is surprising, however, is that neither the district court nor the circuit court actually conducted an undue-burden analysis by assessing the costs of obtaining an abortion in a nearby state. Additionally, the Fifth Circuit did not view increasing the travel distance to obtain an abortion as an undue burden in their decision on Texas’s HB 2. What appears to be creating the “undue burden” is the fact that women would have to cross a state line to obtain an abortion. However, as Justice Garza points out in his dissent, “crossing a 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 oddest part of the majority decision is that the court cited the Supreme Court’s 1938 Missouri ex rel. Gaines v. Canada as precedent. Instead of admitting African Americans into the University of Missouri Law School, the state gave them a voucher they could use to attend law school elsewhere. The Supreme Court ruled that this violated the equal-protection clause, stating that “a state may not shift its equal protection duties to another state.”
This is the first time the Gaines has been cited in an abortion case, and it’s easy to see why: The case is a very poor parallel. The main difference is that running a law school is a function of the state; providing abortions is not. The Supreme Court’s decisions in Roe v. Wade and Planned Parenthood v. Casey have given women a right to an abortion. However, they did not mandate that states had to provide abortions. If the last abortion clinic in Mississippi closed on its own, the state would not be obligated to start opening them up itself.
Moving forward, this ruling raises a variety interesting questions. The owner of Mississippi’s lone abortion clinic, Diane Derzis, was also the owner of the All Woman New Woman abortion clinic in Birmingham, Alabama. In 2012, the Alabama Department of Public Health forced All Woman New Woman to close due to repeated health and safety violations. It would be unfortunate if Mississippi’s Department of Health would be unable to completely enforce various health and safety rules because of this ruling.
— Michael J. New is an assistant professor at the University of Michigan–Dearborn and an adjunct scholar at the Charlotte Lozier Institute. Follow him on Twitter @Michael_J_New