July 30, 2014 — A federal appeals court on Tuesday blocked a Mississippi law (HB 1390) that would have shut down the state's only abortion clinic, ruling that it illegally shifted Mississippi's constitutional obligations to other states, the New York Times reports (Robertson/Eckholm, New York Times, 7/29).
The Mississippi law, like a Texas law (HB 2) with similar provisions, would require that physicians performing abortions have admitting privileges at nearby hospitals. The 5th U.S. Circuit Court of Appeals previously ruled that the Texas law does not impose an unconstitutional burden on women because abortion access would still be available in the state (Women's Health Policy Report, 4/29).
In Tuesday's ruling, a different three-judge panel on the 5th Circuit ruled in a 2-1 decision that the impact of the law in Mississippi, with just one abortion clinic, makes it constitutionally distinct from the law in Texas. Judge Grady Jolly wrote in the majority opinion that the Mississippi law "effectively extinguishes" a woman's constitutional right to abortion in the state and illegally shifts the burden of ensuring that right to neighboring states. "A state cannot lean on its sovereign neighbors to provide protection of its citizens' federal constitutional rights," Jolly wrote (New York Times, 7/29).
Meanwhile, Judge Emilio Garza issued a dissenting opinion, writing, "The sole act of crossing a state border cannot, standing alone, constitute an unconstitutional undue burden of the abortion right because the Constitution envisions free mobility of persons without regard to state borders" (Winfield Cunningham, Politico, 7/29).
The ruling did not overturn the law or assess whether the admitting privileges requirement is a justified safety measure. Rather, the ruling preserved an existing stay against the law and leaves the lower courts to consider the measure under the now-clarified principle of state responsibility, the Times reports (New York Times, 7/29).
According to legal experts, the ruling only applies to the one clinic, meaning that if another clinic opened in the state, it would have to try to comply with the law (Le Coz, Reuters, 7/29). The physicians at the Mississippi clinic sought admitting privileges at multiple hospitals but were denied, prompting the state to order the clinic to close for violating the law (Politico, 7/29).
The new ruling, combined with the legal challenges against similar laws in other states, could "set the stage" for a Supreme Court challenge, the Wall Street Journal reports (McWhirter, Wall Street Journal, 7/29).
According to the Times, federal courts have temporarily blocked admitting privileges laws in Alabama, Kansas and Wisconsin, while similar laws are in effect in Missouri, North Dakota, Tennessee, Texas and Utah (New York Times, 7/29).
Julie Rikelman -- director of litigation for the Center for Reproductive Rights, which argued the case on behalf of the Mississippi clinic -- said that while the 5th Circuit's ruling was narrow, it could have implications for other states in similar situations. For example, officials in Wisconsin and Alabama have both argued that women could cross state lines to access abortion if needed (Wagster Pettus, AP/U-T San Diego, 7/30).
Mississippi Gov. Phil Bryant (R) expressed disappointment with the ruling and indicated that the state would try to appeal to the full 5th Circuit (Reuters, 7/29).
CRR President Nancy Northup said the ruling "ensures women who have decided to end a pregnancy will continue, for now, to have access to safe, legal care in their home state." However, she added that there is "still only one clinic in the entire state, and it is still threatened by a law advanced by politicians over the opposition of respected medical associations, with the sole intent of closing that clinic permanently" (Politico, 7/29).
Similarly, Elizabeth Nash of the Guttmacher Institute said that while "[t]he fact that the Mississippi clinic can stay open is good news," there "are a lot of other cases pending in federal courts, and it's impossible to know if those laws will be upheld or struck down" (New York Times, 7/29).