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Miss. Abortion Clinic Can Stay Open, Thanks to 1938 Segregation Case

By William Peacock, Esq. on July 30, 2014 | Last updated on March 21, 2019

Two states. Two laws. Both laws are pretty much the same: Abortion providers have to have admitting privileges at a nearby hospital. And despite everyone's expectations to the contrary, the Fifth Circuit just jumped in and issued a seemingly contradictory ruling, protecting a Mississippi abortion clinic.

How?

"Today, we follow the principle announced by the Supreme Court nearly fifty years before the right to an abortion was found in the penumbras of the Constitution ... "

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Same Issue, Different State?

If Mississippi's law sounds familiar to you, it might be because this same circuit court just approved a substantively similar law out of Texas -- both require doctors who terminate pregnancies to have admitting privileges at a nearby hospital.

So why was the outcome here any different? It's because there is only one abortion clinic in Mississippi left. The Fifth Circuit held Tuesday 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."

Make no doubt about it -- the only difference here is a state border. Texas is freaking huge, and shuttering abortion clinics means that women have to drive hours to obtain reproductive health services. Mississippi, as lawyers for the state argued to the court, isn't quite as big and its female residents can simply cross into a neighboring state if they need to visit a clinic.

Why? A Missouri Law Student in 1938

How did Mississippi lose? State of Missouri ex rel. Gaines v. Canada, a 1938 case in which Missouri offered to subsidize a black student's legal education in another state rather than admit him outright.

In this as applied challenge, the Fifth Circuit held that HB 1390's requirements imposed an undue burden on the right to an abortion because, as the Supreme Court stated in that 1938 case:

"[T]he obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction ... It is an obligation the burden of which cannot be cast by one State upon another, and no State can be excused from performance by what another State may do or fail to do."

The majority notes that it is, in a way, comparing apples to oranges here: Gaines is an equal protection case, while this is a due process clause appeal where the government isn't providing any service whatsoever -- it's merely regulating a private actor.

"Although cognizant of these serious distinctions, and although decided in a different context, we think the principle of Gaines resolves this appeal," Judge E. Grady Jolly wrote for the Fifth Circuit's majority. "Gaines simply and plainly holds that a state cannot lean on its sovereign neighbors to provide protection of its citizens' federal constitutional rights, a principle that obviously has trenchant relevance here."

What about the dissent? We'll have more on that part of the opinion tomorrow.

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