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 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.