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Miss. Abortion Law Unconstitutional; Clinic Can Stay Open: 5th Cir.

By Brett Snider, Esq. on July 31, 2014 | Last updated on March 21, 2019

Mississippi's only abortion clinic can stay open, after a federal appeals court found that Mississippi's newest abortion law was unconstitutional.

The Mississippi law was similar to controversial abortion reform that passed in Texas last year; the Texas law was upheld by the same federal appellate court in March. Reuters reports that in a 2-1 decision, the 5th U.S. Circuit Court of Appeals determined the Mississippi law would "place an undue burden on a woman's right to seek an abortion."

What makes these decisions so different, and why did the court find Mississippi's law unconstitutional?

The Lone Clinic in the Magnolia State

Part of what makes Mississippi's abortion environment so special is that the state only has one active abortion clinic -- in Jackson, the state capital. If Mississippi's House Bill 1390 were allowed to be enforced, this facility would more than likely close, giving women no access to an abortion in the state. Texas, on the other hand, has several clinics, only some of which are currently shuttered by its analogous law.

Perhaps this is the factual situation that made the 5th Circuit panel decide that Mississippi's law presented an undue burden to women while Texas' law did not. The two cases are very close, as the court determined that it was not a burden for Texas women to drive more than 100 miles to reach the nearest clinic, but maybe it is when Mississippi women have to drive across state lines.

Segregation Case Saves Abortion Clinic

The other strange point about this Mississippi case is the 5th Circuit's application of a segregation case in order to make a point about Mississippi's treatment of its lone clinic. Decided in 1938, State of Missouri ex rel. Gaines v. Canada involved Missouri essentially offering to subsidize a black student's education in another state rather than admit him in-state.

While this case doesn't really seem to apply (and the dissent agrees), the majority of the 5th Circuit panel found Gaines convincing that states cannot rely on other states to protect the civil rights of its residents. Thus, Mississippi cannot point to abortion access in nearby Louisiana as evidence that its laws do not place an undue burden on a woman's right to an abortion.

With the same court making opposite rulings in Texas and Mississippi on substantively similar abortion laws, it probably won't be long until this issue is evaluated again.

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