NEW ORLEANS – A Republican-appointed federal judge hearing a challenge to a law that would close Mississippi’s only abortion clinic grilled an attorney representing the state on the central issue in the case: Whether forcing the women of Mississippi to go out of state for an abortion -- the unquestioned impact of a law requiring that abortion providers have admitting privileges at a local hospital -- would be an undue burden on their constitutional rights.
“It seems you have a steep hill to climb when it’s the only abortion clinic in the state,” said Judge E. Grady Jolly, a Reagan appointee, early in the state’s argument before the Fifth Court Court of Appeals. Jolly is part of a three-judge panel hearing the case.
Paul E. Barnes, the attorney for the state, responded, “There’s nothing inherently burdensome about crossing state lines.”
Jolly was interested in a Jim Crow-era Supreme Court case, Gaines v. Canada, cited by the plaintiffs to show that it wasn’t enough for constitutional rights to be available in the next state over.
“Gaines is 76 years old and has never been cited in an abortion context,” protested Barnes.
“The constitution is pretty old too,” replied Jolly, to laughter in the court.
The core of the state of Mississippi's argument was that the case “turns on the authority of the state to regulate the health and safety of women.” But attorneys for the clinic, as well as the medical establishment, have said the admitting privileges requirement, which Mississippi’s out-of-state abortion providers have been unable to meet, actually harms women’s health, the opposite of what the state claims.
“It will make women less safe,” said the clinic's attorney, Julie Rikelman of the Center for Reproductive Rights.
Because a different panel from the same Fifth Circuit already found a Texas version of the law to have a rational basis, the judges can’t dismiss the law's justification out of hand. They focused instead on whether the law poses an undue burden, which was the finding of the district court.
Rikelman responded that the facts on the ground in Mississippi were different, and that the district court had found that the law was unconstitutional as applied to the clinic, which had been denied privileges at every area hospital. “I believe that under any analysis of undue burden, this law would fail,” Rikelman said.
On the one hand, the state of Mississippi claimed the law would ensure women’s safety, and that “the constitution does not protect the right for a woman to have an unsafe abortion.” (It presented no evidence that the clinic, which has been the sole provider since 2002, is unsafe.) On the other, it suggested women could just go to other states where different laws are in force.
But Judge Stephen A. Higginson, an Obama appointee, noted that among the neighboring states, Alabama has already passed such a requirement, which is about to go to trial, and Louisiana is expected to soon.
Higginson also pointed out the inconsistency in the state arguing that in order to protect women’s health, it would effectively close the last clinic in the state. “It is a little bit ironic to say that this would ensure continuity of care,” he said, and then tell women to go to Louisiana and Alabama, which is by definition "discontinuous."
On the core question, Rikelman said, “The fact that women can leave the state to obtain an abortion may mitigate the impact of the constitutional violation, but it doesn’t validate it.”
A third judge, Emilio Garza, has often opposed abortion rights in his opinions, even as his hands have been tied by Supreme Court precedents. In Monday’s argument, he focused on the fact that one doctor who serves the Mississippi clinic on a part-time basis had admitting privileges, which the district court had dismissed as irrelevant because the two main doctors, who travel to Jackson from out of state, had been denied them.
The judges also seemed keenly aware of the fact that the case, or another admitting privileges law from another state, would likely go to the Supreme Court to clarify whether it poses an undue burden, with Judges Garza and Higginson referencing it.
The court now has the option of keeping the district court's stay on the law's enforcement while it goes to trial or allowing the law to go into effect, closing the clinic. The full Fifth Circuit has also been asked to hear an appeal of the decision on Texas's law, which it has no requirement to take.
After the hearing, Diane Derzis, who owns Jackson Women’s Health, told msnbc, “I’m cautiously optimistic. This is a landmark case, and there’s so much at stake here – the lives of the women in Mississippi.”
All around Mississippi, abortion access is crumbling. Since a panel from the same Fifth Circuit Court of Appeals allowed a similar law to go into effect in Texas late last year, one-third of the clinics in that state have closed. If the courts don’t block a requirement to turn clinics into mini-hospitals, which they’ve also been asked to do, that number will drop down to six in September. To the east of Mississippi, a court has temporarily prevented Alabama’s version of the law from closing three out of five of the state’s clinics, but a trial is pending. Meanwhile, admitting privileges laws have easily passed one chamber in Louisiana and both chambers in Oklahoma, and unless the politics change overnight, are expected to become law.
According to Planned Parenthood, those laws would close three of five of Louisiana’s abortion clinics, including here in New Orleans, and two out of three of Oklahoma’s. In 2011, women in those five contiguous states – Mississippi, Alabama, Texas, Louisiana and Oklahoma – had a total of 103,040 legal abortions, according to the Guttmacher Institute.
So far, most courts apart from the Fifth Circuit, which have decided cases on a preliminary basis, have found the admitting privileges laws to be likely unconstitutional. In a December decision on Wisconsin’s admitting privileges law authored by Judge Richard Posner, the Seventh Circuit plainly declared that in considering an “undue burden,” it did matter whether restrictions on abortion clinics were grounded in actual evidence: “The feebler the medical grounds, the likelier the burden, even if slight, to be undue.”