Attorneys for the State of Mississippi have asked the full panel of judges for the U.S. Court of Appeals for the Fifth Circuit to consider whether closing the only abortion clinic in the state unduly burdens abortion rights.

Attorneys for the State of Mississippi have asked the full panel of judges for the U.S. Court of Appeals for the Fifth Circuit to consider whether closing the only abortion clinic in the state unduly burdens abortion rights.

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On Wednesday, attorneys for the State of Mississippi asked the full Fifth Circuit Court of Appeals to reconsider a decision that kept open the state’s only abortion clinic.

According to the attorneys, last month’s 2-1 decision that struck as unconstitutional a Mississippi law that would require doctors performing abortions in the state to have admitting privileges at area hospitals was wrong in two fundamental ways. First, the attorneys argued, the Fifth Circuit panel improperly relied on Gaines v. Canada, a 1938 Supreme Court decision involving discrimination in education. In that case, the all-white University of Missouri School of Law denied admission to Lloyd Gaines, a Black man. After the law school denied Gaines’ admission, Missouri told Gaines it would pay his tuition to attend law school in another state. Gaines rejected Missouri’s offer and instead sued, arguing the university’s refusal to allow him to attend violated the Equal Protection Clause of the 14th Amendment. After Gaines lost in state court, the United States Supreme Court reversed the decision, holding that Missouri’s attempts to deny Gaines educational benefit did not even satisfy the “separate but equal” standard from Plessy v. Ferguson.

In Gaines, the Supreme Court explained that Missouri could not simply undue the discrimination created by denying Gaines’ admission by paying for his tuition in a different state. When considering the impact of Mississippi’s admitting privileges law last month, the Fifth Circuit panel looked to Gaines for the idea that anti-choice lawmakers could not constitutionally target for closure the state’s only abortion clinic by claiming patients in need of an abortion in Mississippi could simply travel elsewhere to get that care, holding that Mississippi cannot “lean on its sovereign neighbors to provide protection of its citizens’ federal constitutional rights.”

According to attorneys for the State of Mississippi, this is just wrong. “The majority’s reliance on Gaines, a 1938 racial discrimination/equal protection case based on the Plessy v. Ferguson ‘separate but equal’ doctrine, is misplaced,” attorneys for the state argue in their brief. “Until the Panel decision in this case, in the seventy-six year history of the Gaines decision, no court had ever cited or relied on Gaines in the abortion context.”

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When the Fifth Circuit turned to Gaines to help buttress its reasoning for striking the Mississippi law, it did so to show how a person’s fundamental constitutional rights should not depend on the state she happens to live in. Closing Mississippi’s only abortion clinic with the reasoning that a patient in need can simply travel to another state offends every basic principle of fundamental constitutional rights, a conclusion the conservative Fifth Circuit panel came to reluctantly.

The reliance on Gaines in the context of an abortion rights challenge alone could be enough to prompt the full fifteen-judge appeals court to take up review of the panel’s decision blocking Mississippi’s admitting privileges requirement. But attorneys for the state go one step further and argue in their brief that the panel’s decision actually creates a discriminatory patchwork of abortion access, placing Mississippi at a disadvantage, compared to states like Texas that can “raise standards” under their own requirements that doctors have admitting privileges at hospitals close to their clinics. This argument seems tailor-made for conservative justices who believe mandatory ultrasounds “empower” women and that traveling hundreds of miles across Texas to access an abortion is not an undue burden because the roads are flat and patients can speed.

As the brief notes:

The Panel decision ostensibly promotes uniformity, at least in regard to the availability of abortion in every state. In actuality, the Panel places Mississippi at a disadvantage when larger states such as Texas are permitted to raise standards for abortion doctors, whereas Mississippi would be prohibited from applying the same standards to abortion doctors that it already applies to other physicians performing outpatient procedures. The Panel emphasized the district court’s concern about creating a “patchwork system where constitutional rights are available in some state [sic] but not in others.” Conversely, the majority has created its own “patchwork system” wherein one state can require higher standards for physician qualifications than its sister states.

Attorneys for the state also claim the panel’s decision conflicts with its own ruling in Planned Parenthood v. Abbot—the decision that upheld Texas’ requirement that doctors have hospital admitting privileges. According to attorneys for Mississippi, in Abbott the Fifth Circuit made it clear that an abortion restriction shouldn’t be struck down simply because it forces patients to travel hundreds of miles to get an abortion.

Conversely, the Panel majority in this case held that Mississippi’s admitting-privileges law is unconstitutional on the grounds that any journey which requires a woman seeking an abortion to cross the Mississippi state line into an adjoining state constitutes an undue burden, regardless of the distance she must travel. For example, a woman in Hernando, Mississippi could readily obtain an abortion at a clinic in Memphis, Tennessee, a journey of only twenty-five miles. Both Casey and Abbott concluded that the practical effect of an increase in travel distance does not constitute an undue burden. However, by declining to consider the availability of abortion services in adjoining states, the Panel here concluded that the intangible effect of crossing a state line to obtain an abortion automatically transforms even a short journey into an unconstitutional and undue burden.

Put another way, attorneys for the State of Mississippi argue how can the Fifth Circuit rule it is an undue burden to make Mississippi patients travel out of state to obtain an abortion when a majority of them already do?

This question of whether or not a patient’s right to abortion is unduly burdened if they cannot access an abortion in their state has ramifications beyond Mississippi. Currently six states have only one abortion clinic within their borders, and the Roberts Court has indicated it is likely to take up the constitutionality of laws requiring abortion providers to have hospital admitting privileges at some point.