The Dangerous Implication in the Fifth Circuit’s Abortion Ruling

by Anna Franzonello

The 2–1 Fifth Circuit panel decision in Jackson Women’s Health Organization v. Currier, striking down Mississippi’s law requiring abortionists to have admitting privileges at local hospitals, is at least a short-term loss for the people of Mississippi. Despite the court’s bad (even bizarre) rationale, the panel was forced to admit that there are reasonable health and safety concerns for the Mississippi legislature to have enacted the law.

Holding that the Mississippi law has a rational basis, the panel noted that the Fifth Circuit has already “addressed the rational basis of a virtually identical law” in Texas. The panel admitted that there was “no basis” for distinguishing between the rational basis of the Texas law upheld by the Fifth Circuit and the one in Mississippi.

It is worth revisiting those bases for the Texas admitting-privileges requirements that were discussed by the court in Planned Parenthood v. Abbott, which the panel acknowledges “would be equally applicable to [the Mississippi law].” Dr. John Thorp, an expert for the State in Abbott, offered what the Fifth Circuit described as “the most comprehensive statement” in support of the admitting privileges requirement:

There are four main benefits supporting the requirement that operating surgeons hold local hospital admitting privileges and staff privileges: (a) it provides a more thorough evaluation mechanism of physician competency which better protects patient safety; (b) it acknowledges and enables the importance of continuity of care; (c) it enhances inter-physician communication and optimizes patient information transfer and complication management; and (d) it support the ethical duty of care for the operating physician to prevent patient abandonment. [emphasis added]”

Admitting privileges clearly advance patient safety.

In Abbott the Fifth Circuit also found — in line with the U.S. Supreme Court decision in Planned Parenthood v. Casey — that the closure of clinics which failed to comply with the admitting-privileges requirement, resulting in additional distance and cost for an abortion, was not an “undue burden.”

To strike down the Mississippi law, the panel had to somehow distinguish it from that “virtually identical” one already upheld in Abbott. It also had to overcome the fact that prior to the law being struck down, sixty percent of Mississippi women obtaining abortions already traveled to other states for them.

To do so, the panel bizarrely relied on State of Missouri ex rel. Gaines v. Canada, a racial discrimination case from 1938 that has never been cited in the context of abortion, to find that under the “undue burden” analysis the court can only look to access within the state — and cannot consider abortion availability in neighboring states.

But the facts and legal claims in Gaines are wholly dissimilar to those in the Mississippi admitting privileges case — something the panel knows and admits.

In Gaines, an equal-protection case, the U.S. Supreme Court held that Missouri could not deny law school admission to African Americans relying on the fact that they can attend schools in neighboring states. Gaines “addresses the discriminatory distribution of the services provided by the state government.”

In the panel’s own words: “in contrast, this appeal [of the Mississippi admitting-privileges requirement] addresses rights arising under the Due Process Clause, in which the state government is not providing any service.” It is a completely different type of case — different claims, different facts.

However, the panel goes on to hold: “Although cognizant of these serious distinctions, and although decided in a different context, we think the principle of Gaines resolves this appeal.”

To paraphrase the court, “We know this is apples to oranges, but we don’t really care.”

The panel’s stretch to rely on Gaines has seriously ugly implications. According to the panel, “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.’”

This novel idea presented by the panel, that the abortion “right” demands that abortion clinics exist within each state, runs counter to established legal principles.

As in Rust v. Sullivan, the U.S. Supreme Court has been consistently clear that the government has no affirmative duty to “commit any resources to facilitating abortions.” Thus, a state may not be required to facilitate an abortion clinic in the absence of a qualified provider.

Obviously aware that its new “there has to be abortion in Mississippi” rule effectively places Mississippi’s lone abortion clinic above the law, the panel tries to narrow its opinion stating “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.”

One huge problem exists with the panel’s attempted caveat. The panel only looked to the effect of the law on abortion in Mississippi in its analysis. There is simply no logical backstop to support the assertion that the panel opinion is not the death knell for any and all regulation with which the clinic fails to comply.

Judge Emilio Garza articulates it well in his dissent. “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.”

And, as Judge Garza observes, “the majority does not even attempt to explain how this case’s ‘factual context,’ [etc.] purportedly combine to make this burden ‘undue.’”

The good news about the panel’s bad opinion is that the stretch is obvious. The best the court could do was use a wholly inapposite case out of context. And the dangerous implication — that where abortion providers are scarce they can operate outside the law — is apparent. An appeal should be welcomed.

— Anna Franzonello is staff counsel at Americans United for Life

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