MS Admitting Privilege Law Struck Down by 5th Circuit

Ed Note: Guest post by Jonathan F. Will

On July 29, 2014 a panel of the 5th Circuit struck down a Mississippi statute that would have effectively closed the only remaining abortion clinic in the state. Just four months ago a different panel of the 5th Circuit upheld a nearly identical statute enacted in Texas. Both statutes require physicians performing abortions to have admitting privileges in local hospitals.

The differing results are unremarkable because both the purpose and effects prongs of Casey’s undue burden analysis are necessarily fact driven. But there are some open questions worth highlighting from the decisions. The Mississippi law raises a matter of first impression. Namely, of what relevance is it, if any, that Mississippi women would have to cross state lines to obtain an abortion if the law was upheld? After all, even if the last abortion clinic closed, Mississippi women would have a shorter distance to travel to obtain such services than some Texas women now have because of the other 5th Circuit decision.

In striking down the Mississippi law, the 5th Circuit cited an Equal Protection case from the 1930s involving racial discrimination, and suggested (at least in part) that Mississippi cannot “lean on its sovereign neighbors to provide protection of its citizens’ federal constitutional rights.” The idea being that if a state cannot rely on a sister state to provide education for minorities, a state likewise should not be permitted to rely on a sister state to provide abortion services. Regardless of my feelings about the outcome of the case, I have to agree with the dissenting opinion of Judge Garza that this analogy doesn’t work very well.

As the 5th Circuit majority itself points out, states have an affirmative obligation under the Equal Protection Clause to distribute services equally. But they do not have an affirmative obligation to provide abortion services; rather, they are prohibited (pursuant to a different clause in the Constitution) from enacting laws that have the purpose or effect of placing a substantial obstacle in the path of a woman’s choice to have an abortion. The difference is not merely semantic.   Imagine a State X where no abortion clinic exists only because no physicians are willing to perform them. State X would not be obligated to open a clinic for its citizens, and any woman desiring an abortion would have to cross state lines to obtain it. Now imagine that State X decided to join the trend and enact a statute requiring any physician who might want to perform abortions to have admitting privileges. If a doctor wanted to open a clinic in State X, but then couldn’t get admitting privileges, it would be hard to claim that the statute imposed any burden at all on women, since their ability to obtain abortions would remain exactly the same. So crossing state lines alone does not seem to answer the question.

Judge Garza also points out that the majority’s rationale seems to suggest that any law that would close the last abortion clinic in a state would per se impose an undue burden (though the majority attempted to sidestep this by limiting its decision to the facts before it). For instance, what if the only existing clinic was terribly unsterile and had unacceptably high mortality rates. Certainly the state would have an interest in closing it regardless of the fact that women would then have to cross state lines to obtain an abortion.

But there does seem to be something intuitively problematic (regardless of travel time) about a state intentionally forcing its citizens to navigate a foreign state’s body of often complex abortion laws; laws that such citizens would have no ability to change through the democratic process. And that brings me to perhaps the more troubling aspect of these 5th Circuit decisions. Priscilla Smith, Caitlin Borgmann, and others have written recently about courts de-emphasizing the purpose prong of Casey’s undue burden analysis. Put simply, even if a given statute fails to impose an undue burden on a woman’s ability to choose to have an abortion, the law should fail if its purpose was to do so. This suggests that some level of inquiry should be performed into the intent behind the law.

But here the 5th Circuit utilized an interesting move when evaluating the Texas statute. Rather than begin with Casey’s undue burden analysis (as the Supreme Court did in Gonzales v. Carhart), the court started with rational basis review. It reasoned that because all laws must survive rational basis review, it makes sense to start there. If the law fails, you never have to get into the more cumbersome undue burden analysis.

This trick allowed the 5th Circuit to perform a very deferential rational basis review, which simply asked whether the statute was rationally related to a legitimate government interest. There is no requirement that the law actually succeed in serving that interest. And on their face, admitting privilege laws are related to women’s health – continuity of care and all that – which is a legitimate interest. A very deferential rational basis review would end there.

At this point the 5th Circuit proclaimed that because the Texas law survived rational basis, it necessarily had a proper purpose.   Hence the sleight of hand; by starting with rational basis, the court avoided the more rigorous purpose inquiry that Casey would seem to demand. The majority of the panel deciding the Mississippi case avoided the inquiry altogether because no arguments were made regarding Casey’s purpose prong, and it felt bound by precedent on the rational basis inquiry. The dissent went a step further and suggested that Carhart served to eliminate the purpose prong of Casey altogether!

That really is a shame. Recent cases in the 7th Circuit and out of the Middle District of Alabama suggest (without having the opportunity to perform the analysis) that courts ought to take the purpose prong of Casey more seriously. A more searching analysis might smoke out statutes that really are intended to infringe on women’s rights (regardless of whether they are successful). That would go a long way to justify laws that might shut down the sole, unsterile clinic operating in a state.

Then again, as Judge Posner notes, determining the purpose behind these types of statutes will not be an easy task. Even if some public officials openly discuss their desire to outlaw abortion within a given state, members of the legislature may vote to approve the law out of true concern for women’s health. How many votes based on an illicit purpose would be necessary to strike down the law?

I. Glenn Cohen

I. Glenn Cohen

I. Glenn Cohen is the James A. Attwood and Leslie Williams Professor of Law at Harvard Law School and current Faculty Director of the Petrie-Flom Center. A member of the inaugural cohort of Petrie-Flom Academic Fellows, Glenn was appointed to the Harvard Law School faculty in 2008. Glenn is one of the world's leading experts on the intersection of bioethics (sometimes also called "medical ethics") and the law, as well as health law. He also teaches civil procedure. From Seoul to Krakow to Vancouver, Glenn has spoken at legal, medical, and industry conferences around the world and his work has appeared in or been covered on PBS, NPR, ABC, CNN, MSNBC, Mother Jones, the New York Times, the New Republic, the Boston Globe, and several other media venues. He was the youngest professor on the faculty at Harvard Law School (tenured or untenured) both when he joined the faculty in 2008 (at age 29) and when he was tenured as a full professor in 2013 (at age 34).

5 thoughts to “MS Admitting Privilege Law Struck Down by 5th Circuit”

  1. “… analogy doesn’t work very well …” Indeed, I also think the court would not have needed such acrobatics. Given the idea that Federal rights of US citizen apply in every state that has joined the Union, then no state should be allowed to pass laws that impinge on these rights, rendering the constitution of the Union ineffective in the geographical areas it pertains to. From that reasoning the next issue is different: must a state provide services that enable citizens to claim these rights? This hinges on the question if these are general entitlements. Education seems to be one, at least after the US has signed several UN declarations to that effect. But abortion may not be. So while the state may not be able to close down a clinic, it may also not be obligated to finance one. But if private enterprise or charities were to provide for abortions -provided they meet the health standards in that state- then the state should have no right to interfere.

  2. I don’t think the relevant question here (or in Gaines — the 1930s race discrimination case to which Professor Will refers) is about entitlements. It is, as the earlier part of Ms. Coffey’s comment suggests, about whether a state can justify its infringement of fundamental constitutional rights (whether equal protection, abortion, or any other right) by arguing that its citizens may still exercise those rights in a neighboring state. I’ve written a longer response to Prof. Will’s excellent analysis here:
    http://lawprofessors.typepad.com/reproductive_rights/2014/08/jonathan-will-on-fifth-circuit-decision-enjoining-mississippis-admitting-privileges-law.html

  3. I don’t think the relevant question here (or in Gaines — the 1930s race discrimination case to which Professor Will refers) is about entitlements. It is, as the earlier part of Ms. Coffey’s comment suggests, about whether a state can justify its infringement of fundamental constitutional rights (whether equal protection, abortion, or any other right) by arguing that its citizens may still exercise those rights in a neighboring state. I’ve written a longer response to Prof. Will’s excellent analysis here:
    http://lawprofessors.typepad.com/reproductive_rights/2014/08/jonathan-will-on-fifth-circuit-decision-enjoining-mississippis-admitting-privileges-law.html

  4. A colleague of mine (Matt Steffey) shares the enthusiasm for Gaines. We had an interesting discussion last week, and it turned out that we agree more than disagree. It just seems to me that even the Gaines analysis really boils down to a type of purpose inquiry, for it presupposes that one state is trying to rely on another state for an illicit purpose. If there is a proper purpose for shutting down an abortion clinic (or college), then the state cannot be faulted for sending its women (or students) to another state to receive those services. To a certain extent, it comes down to the level of inquiry the courts are permitted to perform. If Gaines were decided today, the courts would use strict scrutiny and could smoke out the discriminatory purpose. A deferential form of rational basis leaves much less room for that type of inquiry, which is why the purpose prong of Casey becomes important. As Judge Thompson (in Alabama) noted in his decision yesterday, Casey is not strict scrutiny (or even intermediate scrutiny), but it certainly isn’t supposed to be rational basis.

  5. A colleague of mine (Matt Steffey) shares the enthusiasm for Gaines. We had an interesting discussion last week, and it turned out that we agree more than disagree. It just seems to me that even the Gaines analysis really boils down to a type of purpose inquiry, for it presupposes that one state is trying to rely on another state for an illicit purpose. If there is a proper purpose for shutting down an abortion clinic (or college), then the state cannot be faulted for sending its women (or students) to another state to receive those services. To a certain extent, it comes down to the level of inquiry the courts are permitted to perform. If Gaines were decided today, the courts would use strict scrutiny and could smoke out the discriminatory purpose. A deferential form of rational basis leaves much less room for that type of inquiry, which is why the purpose prong of Casey becomes important. As Judge Thompson (in Alabama) noted in his decision yesterday, Casey is not strict scrutiny (or even intermediate scrutiny), but it certainly isn’t supposed to be rational basis.

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