Jonathan Will on Fifth Circuit Decision Enjoining Mississippi's Admitting Privileges Law

Bill of Health (Harvard Law School Petrie-Flom Center):  MS Admitting Privilege Law Struck Down by 5th Circuit, by Jonathan Will:

On July 29, 2014 a panel of the 5th Circuit struck down a Mississippi statute that would have effectively closed the only remaining abortion clinic in the state. Just four months ago a different panel of the 5th Circuit upheld a nearly identical statute enacted in Texas. Both statutes require physicians performing abortions to have admitting privileges in local hospitals.

The differing results are unremarkable because both the purpose and effects prongs ofCasey’s undue burden analysis are necessarily fact driven. But there are some open questions worth highlighting from the decisions. The Mississippi law raises a matter of first impression. Namely, of what relevance is it, if any, that Mississippi women would have to cross state lines to obtain an abortion if the law was upheld? After all, even if the last abortion clinic closed, Mississippi women would have a shorter distance to travel to obtain such services than some Texas women now have because of the other 5th Circuit decision.

In striking down the Mississippi law, the 5th Circuit cited an Equal Protection case from the 1930s involving racial discrimination, and suggested (at least in part) that Mississippi cannot “lean on its sovereign neighbors to provide protection of its citizens’ federal constitutional rights.” The idea being that if a state cannot rely on a sister state to provide education for minorities, a state likewise should not be permitted to rely on a sister state to provide abortion services. Regardless of my feelings about the outcome of the case, I have to agree with the dissenting opinion of Judge Garza that this analogy doesn’t work very well. 

As the 5th Circuit majority itself points out, states have an affirmative obligation under the Equal Protection Clause to distribute services equally. But they do not have an affirmative obligation to provide abortion services; rather, they are prohibited (pursuant to a different clause in the Constitution) from enacting laws that have the purpose or effect of placing a substantial obstacle in the path of a woman’s choice to have an abortion. The difference is not merely semantic.   Imagine a State X where no abortion clinic exists only because no physicians are willing to perform them. State X would not be obligated to open a clinic for its citizens, and any woman desiring an abortion would have to cross state lines to obtain it. Now imagine that State X decided to join the trend and enact a statute requiring any physician who might want to perform abortions to have admitting privileges. If a doctor wanted to open a clinic in State X, but then couldn’t get admitting privileges, it would be hard to claim that the statute imposed any burden at all on women, since their ability to obtain abortions would remain exactly the same. So crossing state lines alone does not seem to answer the question.

Judge Garza also points out that the majority’s rationale seems to suggest that any law that would close the last abortion clinic in a state would per se impose an undue burden (though the majority attempted to sidestep this by limiting its decision to the facts before it). For instance, what if the only existing clinic was terribly unsterile and had unacceptably high mortality rates. Certainly the state would have an interest in closing it regardless of the fact that women would then have to cross state lines to obtain an abortion.

But there does seem to be something intuitively problematic (regardless of travel time) about a state intentionally forcing its citizens to navigate a foreign state’s body of often complex abortion laws; laws that such citizens would have no ability to change through the democratic process. And that brings me to perhaps the more troubling aspect of these 5thCircuit decisions. Priscilla Smith, Caitlin Borgmann, and others have written recently about courts de-emphasizing the purpose prong of Casey’s undue burden analysis. Put simply, even if a given statute fails to impose an undue burden on a woman’s ability to choose to have an abortion, the law should fail if its purpose was to do so. This suggests that some level of inquiry should be performed into the intent behind the law.

But here the 5th Circuit utilized an interesting move when evaluating the Texas statute. Rather than begin with Casey’s undue burden analysis (as the Supreme Court did inGonzales v. Carhart), the court started with rational basis review. It reasoned that because all laws must survive rational basis review, it makes sense to start there. If the law fails, you never have to get into the more cumbersome undue burden analysis.

This trick allowed the 5th Circuit to perform a very deferential rational basis review, which simply asked whether the statute was rationally related to a legitimate government interest. There is no requirement that the law actually succeed in serving that interest. And on their face, admitting privilege laws are related to women’s health – continuity of care and all that – which is a legitimate interest. A very deferential rational basis review would end there.

At this point the 5th Circuit proclaimed that because the Texas law survived rational basis, it necessarily had a proper purpose.   Hence the sleight of hand; by starting with rational basis, the court avoided the more rigorous purpose inquiry that Casey would seem to demand. The majority of the panel deciding the Mississippi case avoided the inquiry altogether because no arguments were made regarding Casey’s purpose prong, and it felt bound by precedent on the rational basis inquiry. The dissent went a step further and suggested that Carhart served to eliminate the purpose prong of Casey altogether!

That really is a shame. Recent cases in the 7th Circuit and out of the Middle District of Alabama suggest (without having the opportunity to perform the analysis) that courts ought to take the purpose prong of Casey more seriously. A more searching analysis might smoke out statutes that really are intended to infringe on women’s rights (regardless of whether they are successful). That would go a long way to justify laws that might shut down the sole, unsterile clinic operating in a state.

Then again, as Judge Posner notes, determining the purpose behind these types of statutes will not be an easy task. Even if some public officials openly discuss their desire to outlaw abortion within a given state, members of the legislature may vote to approve the law out of true concern for women’s health. How many votes based on an illicit purpose would be necessary to strike down the law?

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While I agree with much of Professor Will's excellent analysis, I disagree that the majority's reliance on Missouri ex rel. Gaines v. Canada (the 1930s race discrimination decision to which he refers) is flawed.   I don't read  Gaines as applying narrowly to a state's affirmative obligations under the Equal Protection Clause.  The question in Gaines was not whether a state must provide an education to its citizens, but whether it must do in a non-discriminatory manner.  As the Court explained, "The question here is not of a duty of the State to supply legal training, or of the quality of the training which it does supply, but of its duty when it provides such training to furnish it to the residents of the State upon the basis of an equality of right."  Similarly, in the admitting privileges context, the question is not whether the state has "an affirmative obligation to provide abortion services" (as Professor Will puts it), but whether it may affirmatively place obstacles in the path of women seeking such abortions without the state's help.

A broader interpretation of Gaines recognizes that a state may not rely on other states to provide the protection for federal constitutional rights that it denies within its borders.  Just as a state may not violate equal protection rights and rely on its neighbors to provide that protection, it may not infringe abortion rights and expect its citizens to exercise their rights elsewhere.  Today's excellent opinion by U.S. District Judge Thompson -- invalidating Alabama's admitting privileges requirement -- provides further examples of decisions in which "courts have refused to allow out-of-jurisdiction access [to constitutional rights] to cure within-jurisdiction restrictions" (citing cases addressing freedom of speech, firearm rights, and free exercise of religion).

-CEB

Professor Will contributes this response:

A colleague of mine (Matt Steffey) shares the enthusiasm for Gaines.  We had an interesting discussion last week, and it turned out that we agree more than disagree.  It just seems to me that even the Gaines analysis really boils down to a type of purpose inquiry, for it presupposes that one state is trying to rely on another state for an illicit purpose.  If there is a proper purpose for shutting down an abortion clinic (or college), then the state cannot be faulted for sending its women (or students) to another state to receive those services.  To a certain extent, it comes down to the level of inquiry the courts are permitted to perform.  If Gaines were decided today, the courts would use strict scrutiny and could smoke out the discriminatory purpose.  A deferential form of rational basis leaves much less room for that type of inquiry, which is why the purpose prong of Casey becomes important.  As Judge Thompson (in Alabama) noted in his decision yesterday, Casey is not strict scrutiny (or even intermediate scrutiny), but it certainly isn't supposed to be rational basis.