On July 29, 2014, the U.S. Court of Appeals for the Fifth Circuit issued an as-applied ruling in a case involving Mississippi’s statute requiring that all physicians affiliated with a Jackson clinic providing abortion services have admitting and staff privileges at local hospitals. All local hospitals were unwilling to grant privileges to two of the clinic’s physicians who were involved most directly in abortion services because of the nature of their practices. Had the state’s statute been enforced, the clinic—Mississippi’s only facility offering abortion services—would have been ordered to close.
Mississippi’s argument was that ordering the clinic to close would not impose an undue burden on Mississippi women’s constitutional rights because women would be able to travel to nearby states for abortion services. The Fifth Circuit reasoned to the contrary: “Mississippi may not shift its obligation to respect the established constitutional rights of its citizens to another state. Such a proposal would not only place an undue burden on the exercise of the constitutional right, but would also disregard a state’s obligation under the principle of federalism—applicable to all fifty states—to accept the burden of the non-delegable duty of protecting the established federal constitutional rights of its own citizens.” Jackson Women’s Health Organization v. Currier, 2014 WL 3730467 (July 29, 2014).
The District Court had granted a preliminary injunction regarding enforcement of the Mississippi statute (H.B. 1390, enacted in 2012). The Fifth Circuit affirmed the District Court decision, modified to clarify that it was limited to the case involving Jackson Women’s Health Organization. The standard for review on appeal was whether the district court’s decision was an abuse of discretion; the primary issue was whether the clinic had shown a substantial likelihood of success on the merits of its contention that the statute imposed an undue burden on women’s constitutional rights. (As a preliminary matter, the Fifth Circuit concluded that the regulation met its rational basis test that tips the scales in the state’s favor. The law could be presumed rationally related to the legitimate state interest in preventing patient abandonment, even if it is based on “rational speculation . . . unsupported by evidence or empirical data.”)
With respect to whether the statute had the effect of imposing an undue burden on women’s constitutional rights, Fifth Circuit precedent is that distance or cost alone are insufficient. The question for the Fifth Circuit was therefore whether out of state clinics could be considered in the undue burden analysis. In resolving whether state lines matter, the court parsed the US Supreme Court decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), and the Tenth Circuit decision in Jane L. v. Bangerter, 102 F.3d 1112 (10th Cir. 1996), cert. denied, 520 U.S. 1274 (1997), neither of which considered out of state clinics in the undue burden analysis. The court also turned to State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938), for additional support. In Gaines, Missouri had argued that it was not required to grant African-American residents admission to its state law school because it was willing to provide them with tuition stipends for use in law schools in neighboring states. The U.S. Supreme Court held that the tuition stipend program could not relieve Missouri of its responsibilities to its citizens under the Fourteenth Amendment. Although Gaines was an equal protection, not a due process, case, the Fifth Circuit applied its reasoning to conclude that Mississippi could not rely on the availability of abortion services in neighboring states to counter the claim that it was imposing an undue burden on Mississippi women’s constitutional rights.
Judge Garza, writing in dissent, criticized the conclusion that the Mississippi statute created the undue burden, the application of Gaines, and the Casey decision itself. On all three points, Judge Garza (appointed by President George H.W. Bush in 1991; on senior status beginning in 2012) took a very limited view of the responsibilities of states. It would not be the effect of the statute to cause the clinic to close, he said, because the privileging decisions were made by local hospitals; he would thus permit the state to do indirectly through private actors what it perhaps could not do itself directly. Gaines, Judge Garza said, is “wholly inapposite” because it held that states could not shift their duties to provide equal protection to other states—whereas in the abortion context the state’s only constitutional duty is not to unduly burden its citizens, a duty it is not shifting to other states. What Judge Garza fails to recognize is that Mississippi’s undue burden analysis does shift responsibilities elsewhere, for it assumes that abortions remain available in at least some jurisdictions. The state’s “negative” duty is not just a duty of inaction; it is a duty to choose among ways of meeting its rational ends that does not unduly burden and it cannot rely on other states to bail it out. Finally, Judge Garza criticized Casey for adopting what he viewed as a standard that gives courts unlimited discretion to impose their political preferences to determine when the state has imposed an undue burden. On Judge Garza’s view, determining what burdens to impose is a matter for state legislatures, in their unlimited discretion.