It’s been a good week in court for access to abortion—a sentence I don’t often get to write. Last week three Appeals Court judges ruled that Mississippi can’t put into effect a law that would close the state’s lone clinic, saying that each state has to independently fulfill its constitutional obligation to provide access to the procedure. On Monday, Judge Myron Thompson of federal District Court in Alabama blocked a similar restriction, keeping the state’s number of clinics at five.
The laws that have been halted aimed to require doctors to get admitting privileges at local hospitals. That sounds like a neutral box for the state to check, until you learn that the hospitals won’t grant the privileges, which is why the effect is to shutter clinics. To reject the admitting-privileges requirement, the two rulings came up with different rationales. That’s useful, for pro-choice advocates and their lawyers, going forward. Because in this war with no rest for the weary, the legal fight has already moved to Texas this week, where a trial is unfolding over another doozy of a law, which would have the biggest impact yet in shutting down clinics, if it goes into effect.
The Appeals Court decision about Mississippi came from the 5th Circuit. By a vote of 2–1, the three-judge panel said that Mississippi can’t argue that shutting its only clinic wouldn’t impose an “undue burden” on women seeking an abortion—that’s the crucial if elusive legal standard—because they could still head to a clinic in a neighboring state. The judges in the majority, appointed by Obama and Reagan, did a nice job of drawing this line in the sand, and their approach could travel. The idea that each state should stand unto itself has a federalist ring, which other Republican-appointed judges might find appealing. (Hello, Justice Kennedy?)
For support, the 5th Circuit panel reached back to the 1938 civil rights victory of Lloyd Lionel Gaines, a black man who was initially denied admission to the University of Missouri Law School, which instead offered him a tuition stipend for use in a neighboring state. The Supreme Court rejected that scheme, proclaiming that “no State can be excused from performance by what another state may do or fail to do.” As long as Roe v. Wade is on the books, Mississippi can’t close its last clinic by telling women to knock on Tennessee’s door.
Judge Thompson’s Alabama ruling goes further. Thompson held a lengthy trial in which both the clinics and the state thoroughly aired their arguments against and for the law, calling on witnesses and entering lots of data into the record. In a whomping 172-page opinion, Thompson does the most thorough job yet of shredding the state’s argument that requiring admitting privileges makes women safer. For starters, the rate of complications requiring hospitalization for first-trimester abortions is tiny—between .05 percent and .3 percent. The three Alabama clinics that sued to block the law do abortions only in the first trimester. As far as they know, only a handful of their patients went to the hospital between 2010 and 2013. And under pre-existing Alabama law—without the new statute—abortion clinics had to have a contract with a hospital saying that a “covering physician” can come to the hospital to give follow-up treatment, including surgery. The regulations already on the books also “require certain communications to facilitate continuity of care,” Judge Thompson wrote. The state’s chief medical officer testified that these rules “did an adequate and effective job of protecting the public health.”
And so, Thompson concluded, “the State’s justifications are exceedingly weak.” This harks back to a line from Judge Richard Posner (an occasional Slate contributor), who, at an argument about a Wisconsin admitting-privileges law last December, asked why—if this was truly a public health measure—the state targeted abortion clinics, rather than regulating outpatient clinics that do procedures with higher complication rates. “Why did they start with abortion clinics? Because it begins with the letter ‘A’?” Posner asked.
It’s crucial for judges to call out states for making tissue-thin claims about restricting access to abortion in the name of health and safety. To digress, this is the kind of scrutiny of suspect claims about reproductive health that went infuriatingly missing from the Supreme Court’s Hobby Lobby ruling in June. Also important: Thompson said that a law that effectively requires women to travel far longer to reach a clinic can impose an undue burden, just for that reason. That matters because last March, in a ruling rightly seen as a big pro-life victory, a second panel of three 5th Circuit judges upheld the admitting privilege requirement in Texas (yes, same law, different state, different trio of judges, all women, two appointed by George W. Bush, one appointed by Reagan) even though it has resulted in clinic closures that force women to drive 150 miles. And last but very much not least, Thompson recognized that the burden of travel falls most heavily on poor women—and that this too is a factor for courts to consider in weighing whether a restriction poses an undue burden. The administrator of one of the three clinics in Alabama, in Mobile, testified that 90 percent of patients live in poverty. In Montgomery, 60 percent asked for financial help. These are the people whose health and safety are being hurt, not helped, by red-tape regulations like requiring admitting privileges.
Will any of this sway the judge presiding over this week’s trial in Texas, or the appellate judges who will eventually hear that same case? The trial is about a separate piece of the Texas law that has already brought admitting-privileges requirements to the state, after the legislature got past the filibuster Wendy Davis (now running for governor) famously pulled off in her pink tennis shoes. The part that’s at trial now, slated to go into effect on Sept. 1, requires every abortion clinic to be outfitted as an ambulatory surgical center—with wide hallways, cold temperatures, all staff in surgical garb, and lots of expensive equipment. “Once we got past the lobby, the facility looked much more like an emergency room than a doctor’s office,” one reporter wrote after visiting one of the five clinics in all of Texas’ 270,000 square miles that meet the surgical center requirements. Are women safer in this hyper-medicalized setting? That’s the new pro-life argument in what’s becoming a tired battle. I’d like to say the outcome will depend on the evidence. But considering the division so far between two sets of 5th Circuit judges over the constitutionality of requiring admitting privileges, it looks like who gets to decide is really what matters. Which is why I keep running every argument past my life-size cutout of Anthony Kennedy.