You Can Still Get an Abortion in Alabama – Emily Bazelon AUG. 4 2014 6:20 PM


Mississippi’s lone abortion clinic, the Jackson Women’s Health Organization, has been saved by the courts.

Photo by Stringer/Reuters

It’s been a good week in court for access to abortion—a sentence I don’t often get to write. Last week three Appeals Court judges ruled that Mississippi can’t put into effect a law that would close the state’s lone clinic, saying that each state has to independently fulfill its constitutional obligation to provide access to the procedure. On Monday, Judge Myron Thompson of federal District Court in Alabama blocked a similar restriction, keeping the state’s number of clinics at five.

The laws that have been halted aimed to require doctors to get admitting privileges at local hospitals. That sounds like a neutral box for the state to check, until you learn that the hospitals won’t grant the privileges, which is why the effect is to shutter clinics. To reject the admitting-privileges requirement, the two rulings came up with different rationales. That’s useful, for pro-choice advocates and their lawyers, going forward. Because in this war with no rest for the weary, the legal fight has already moved to Texas this week, where a trial is unfolding over another doozy of a law, which would have the biggest impact yet in shutting down clinics, if it goes into effect.

The Appeals Court decision about Mississippi came from the 5th Circuit. By a vote of 2–1, the three-judge panel said that Mississippi can’t argue that shutting its only clinic wouldn’t impose an “undue burden” on women seeking an abortion—that’s the crucial if elusive legal standard—because they could still head to a clinic in a neighboring state. The judges in the majority, appointed by Obama and Reagan, did a nice job of drawing this line in the sand, and their approach could travel. The idea that each state should stand unto itself has a federalist ring, which other Republican-appointed judges might find appealing. (Hello, Justice Kennedy?)

For support, the 5th Circuit panel reached back to the 1938 civil rights victory of Lloyd Lionel Gaines, a black man who was initially denied admission to the University of Missouri Law School, which instead offered him a tuition stipend for use in a neighboring state. The Supreme Court rejected that scheme, proclaiming that “no State can be excused from performance by what another state may do or fail to do.” As long as Roe v. Wade is on the books, Mississippi can’t close its last clinic by telling women to knock on Tennessee’s door.

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