By Dave Andrusko
I almost didn’t run yesterday’s story about a split three-judge panel of the 5th U.S. Circuit Court of Appeals which struck down a Mississippi law that requires abortionists to have admitting privileges at a local hospital. There was time only to skim the decision and to write in generalities.
Later last night when I sat down to carefully read both the majority opinion of Judges E. Grady Jolly and Stephan A. Higginson and the dissent of Judge Emilio M. Garza, I realized that Garza had simply eviscerated the arguments offered by Jolly and Higginson. The decision—including the dissent– is only 37-pages long, so if you have time you really should read it.
The easiest way to understand the decision is by looking at Garza as he artfully rebuts the conclusions drawn by his two colleagues. There are several qualities which make the challenge brought by the Jackson Women’s Health Organization special for the two judges, but the principal one is that it is the state of Mississippi’s lone abortion clinic.
Let me offer only a few of Garza’s keen critiques.
- Jolly and Higginson concede that the state met the test of having a “rational basis” for the law. Garza described it this way: “In sum, the purpose of H.B. 1390 is to protect women seeking abortion services from the known risks of complications.”
- Judges Jolly and Higginson conclude that (as Garza’s describes it in his opening paragraph) “the mere act of crossing a state border imposes an ‘undue burden’ on woman’s right to choose to obtain abortion services.” For starters (as Garza explains about half-way through his dissent), “In 2011, prior to the Act’s passage, nearly sixty percent of Mississippi women who obtained abortions already traveled to other states for these services.” What’s the “undue burden” on these women if the Jackson Women’s Health Organization closes because it cannot find a hospital willing to give its fly-in abortionists admitting privileges?
- Garza argues that because it is the “independent decisions of local hospitals—non-state actors” to reject the abortionists’ applications, the closure would not “result directly from H.B. 1390.” But even assuming it was because of H.B. 1390, Garza said he would disagree with the decision which held there was an undue burden “because Mississippi women would need to travel to a neighboring state to obtain abortion services.” The majority relied on a misreading of the 1992 Planned Parenthood v. Casey decision, he writes. Jolly and Higginson concluded that because the High Court in Casey failed “to ‘mention or consider the potential availability of abortions….in surrounding states’ [it] implies that we must confine our undue burden to Mississippi.” Garza characterized that inference as “legally nonsensical.” The case at hand presented “a novel factually situation—the closure of a state’s sole abortion provider as a result of a law regulating physician qualifications. The absence of binding authority addressing similar facts merely frees us to derive the rule of law that resolves this dispute.”
- Writing on behalf of himself and Judge Higginson, Judge Jolly shifted into rhetorical overdrive with this passage, one that is crucial to their decision: “We hold that 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.”
To reach this strained conclusion, Garza notes that the majority relied heavily on a case they admit had “never been cited in the abortion context.” It was the refusal of the University of Missouri law school in the 1930s to admit an African-American; the law school then offered him a stipend to attend a law school in a neighboring state. [In fact Jolly wrote, “Although cognizant of these serious distinctions and although decided in another context…” Talk about a stretch!]
Garza explains at length the difference between equal protection obligations and the Due Process Clause (which the abortion clinic was suing under); explains that Mississippi is not providing a service (abortion)—and indeed, “no state is obligated to provide or guarantee the provision of abortion services within its borders”; and that for those women in the Jackson area most affected by the clinic’s closing, “a proper undue analysis must assess the cost of obtaining abortion services at the closest facility in a neighboring state.” That analysis had not been done by the district court. Why? Likely because both the district court and the majority concluded that “the close or a state’s only abortion provider would be a per se undue burden.”
Judge Garza offers many more trenchant criticisms, including of the majority’s pretense that there could be a law that has the effect of closing all abortion clinics that they would not strike down. In you can squeeze in the time, please at least read his 19-page dissent.
It offers a roadmap for clear thinking about supposed “undue burdens” that are nothing of the sort.