A Fifth Circuit panel on Tuesday upheld an injunction against the enforcement of a Mississippi statute requiring physicians providing abortions to have admitting privileges at a nearby hospital as it applied to the state's last remaining clinic. It did so despite binding authority from earlier this year -- a different panel's decision upholding a substantially similar law out of Texas.
The majority justified the split from authority by pointing to a 1938 segregation-in-education case -- an Equal Protection holding, even though this is a Due Process dispute. Circuit Judge Emilio Garza was so dumbfounded by the majority's reasoning that his dissent more than doubles the length of the opinion -- from 18 to 37 pages long.
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In his dissent, Garza takes issue with every single premise in the majority's opinion, while saving a few pages' worth of wrath for Planned Parenthood v. Casey itself. We'll hold off on reiterating his rant, which echoes many that have come before him (standard-less standard of Casey comes from Harlan's sloppy dissent in Poe v. Ullman, which has led to decades of sloppy judicial activism based in politics) and instead look at his issues with the case at hand.
H.B. 1390 Doesn't Close Clinics (Directly)
Garza starts by noting that this isn't state action: The law requires physicians to get admitting privileges -- that's it.
Five hospitals in the area around the clinic declined to extend those privileges. Hospitals choosing not to extend privileges is private action, action which may conflict with federal law. ("Federal law, however, prohibits entities receiving certain funding or contracts from discriminating 'in the extension of staff or other privileges to any physician ... because he performed or assisted in the performance of a lawful sterilization procedure or abortion ...'") This case isn't about possibly illegal private action, however -- it's about review of a state law.
"The independent decisions of private hospitals have no place in our review of state action under the Constitution," Judge Garza wrote.
How Far of a Drive Is Too Far?
Our first reaction to the holding in this case was, "What about Abbot?" Right or wrong, the Fifth Circuit, just this past March, upheld a similar law out of Texas. Judge Garza is wondering the same thing:
"Applying Casey, a panel of this Court recently concluded that 'an increase of travel of less than 150 miles for some women is not an undue burden,'" Garza wrote. "The majority gives these binding principles a passing nod [...] before setting them aside for the sole reason that this case happens to involve the crossing of state borders to obtain abortion services."
He also took issue with the majority's citation of Casey as support for the proposition that crossing state lines is an undue burden on the right to obtain an abortion:
"In the majority's view, the Casey Court's failure to 'mention or consider the potential availability of abortions ... in surrounding states' implies that we must confine our undue burden analysis to Mississippi. [...] Such an inference is legally nonsensical: No such rule exists. Casey dealt with the constitutionality of a Pennsylvania statute imposing various informed consent and spousal notification requirements on women seeking abortion services in that state, and the Court had no occasion to consider abortion access in nearby states. The lack of a squarely applicable precedent means only that the question remains open."
Gaines Is Apples and Oranges
In Gaines, the Supreme Court held that a state has an obligation "to give the protection of equal laws" regardless of "what another State may do or fail to do." (Emphasis in dissent.)
The key words are "equal" and "protection:" Gaines "governs each state's obligations solely under the Equal Protection Clause, not under the Constitution at large, much less the substantive component of the Due Process Clause," Judge Garza concluded.
Another significant distinction: In Gaines, the state was dealing with a service that it was obligated to provide equally: providing an education to students within its borders.
Here? The state is not, and is not required to, provide abortions.
We're Going to Need a Bigger Record
Despite the lengthy dissent, Judge Garza wasn't ready to hand the case to Mississippi outright. He noted that the correct test would be to follow Casey and Abbott to see if the distance traveled would amount to an undue burden.
Such a test, of course, would almost certainly come out in Mississippi's favor. As Garza points out, before the Act's passage, nearly 60 percent of Mississippi women seeking an abortion already went out of state. Plus, as Mississippi has been arguing all along, neighboring out-of-state clinics exist within driving distance of Jackson.
- Jackson Women's Health Organization v. Currier (FindLaw's Cases and Codes)
- First 20-Week Abortion Case Punted; Recess Appointments Doomed? (FindLaw's U.S. Supreme Court Blog)
- Texas Abortion Law Unblocked by 5th Circuit (FindLaw's U.S. Fifth Circuit Blog)