The Fifth Circuit has cast doubt on a Mississippi law which, by imposing burdensome licensing requirements on doctors associated with abortion clinics, threatened to shutter the state's last abortion clinic.
The decision came in an appeal of a preliminary injunction sought by the Jackson Women's Health Organization, which runs the clinic. The Fifth Circuit, in that context, had to consider whether the JWHO was likely to succeed in the case as a whole, and their answer was decidedly yes.
The law in question, known as H.B. 1390, required that doctors working in any abortion clinic "have admitting privileges at a local hospital and staff privileges to replace local hospital on-staff physicians." While one of the doctors at the last abortion clinic in Mississippi had such privileges, the other two did not. Local hospitals were not willing to extend them the privileges, either. (Wonder why.)
When the JWHO challenged H.B. 1390 in court, Mississippi officials tried to argue that the women of the state could simply travel elsewhere to get their superfun, if whorish, medical procedure:
The State argues that, at most, an incidental burden will be created as Mississippi women will only be required to travel a further distance to reach an abortion clinic. The State points to clinics in cities in neighboring states such as Baton Rouge, New Orleans, and Memphis. Relying on these neighboring clinics, the State argues that Abbott demands reversal in this case because of the nearby clinics, albeit in other states.
While the Fifth Circuit agreed today that H.B. 1390 met a "rational basis" test, it also held it likely that this would be exactly the kind of "undue burden" the Court's forbid. And it was especially clear that the Fifth Circuit thought this little pass-the-buck argument was too cute by half.
So the Court reached back into cases much older than Roe v. Wade where the Supreme Court's frowned on states simply heaving off their obligations to protect their citizens' rights. The key case is Missouri ex rel. Gaines v. Canada, a Fourteenth Amendment case about segregation. Quoth the Fifth Circuit:
Gaines simply and plainly holds that a state cannot lean on its sovereign neighbors to provide protection of its citizens' federal constitutional rights, a principle that obviously has trenchant relevance here. Pre-viability, a woman has the constitutional right to end her pregnancy by abortion. H.B. 1390 effectively extinguishes that right within Mississippi's borders. 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." Id.
While again, this was only a decision on a preliminary injunction, and the Court was careful to limit its holding, it's pretty hard to read that paragraph as doing anything less than advising Mississippi that it is likely to lose this fight.
They'll have to find some other new and exciting way to punish all the wayward women in the state.
[Image of the clinic via AP.]