If The Supreme Court Tackles Abortion Next, The Reproductive Rights Landscape Could Be Dramatically Transformed
The Supreme Court is already set to make one colossal ruling on a social issue this term, but another paradigm-shifting decision may be handed down by the high court as early as this week. The Supreme Court may once again take up abortion, this time in the form of Mississippi's admitting privileges law — the provision that nearly closed the state's lone abortion clinic in 2012 and has since been adopted by more than a dozen states. If the high court does take the case, the landscape of abortion rights in America, at the state level, could be dramatically transformed in a matter of months.
Mississippi's admitting privileges provision, which requires abortion-clinic doctors to have privileges at a hospital within a 30-mile radius, has been ensnared in an exhaustive legal battle since July 2012. The law has never been enforced, because doctors at Jackson Women's Health Organization, who travel from out-of-state due to the area's history of anti-abortion harassment, were denied by local hospitals. Jackson Women's Health Organization has remained open with a federal injunction.
The clinic received its ultimate victory in November 2014, when the 5th Circuit Court of Appeals refused to reconsider a prior federal ruling that found the law unconstitutional. The 5th Circuit also continued to block the provision from taking effect and shuttering Mississippi's only abortion provider.
Mississippi leaders, however, were not too happy with the recent decisions. In February, the state petitioned the Supreme Court, asking the justices to open the Pandora's Box of state abortion laws.
"It is well-settled law that a State may further its legitimate interests in protecting the health and welfare of its citizens by regulating the medical profession — including the regulation of facilities and physicians that perform abortions," Mississippi Attorney General Jim Hood, among others, stated in the brief.
Yet attorneys for the Center for Reproductive Rights, representing Jackson Women's Health Organization, countered with a brief of their own in April. The Center argues that since lower courts concluded it was unconstitutional to make women travel out-of-state to obtain an abortion — a cumbersome process that the federal courts considered an "undue burden" — the Supreme Court should dismiss Mississippi's petition.
"Indeed, outside the abortion context," the Center for Reproductive Rights wrote, "the courts of appeals are in agreement that a person’s ability to exercise a constitutional right outside the jurisdiction cannot cure a constitutional violation inside the jurisdiction."
It's the same attitude Judge E. Grady Jolly had last July, when he handed down the 5th Circuit's 2-1 ruling that overturned the admitting privileges law. “Mississippi may not shift its obligations to respect the established constitutional rights of its citizens to another state,” Jolly wrote, addressing how Mississippi leaders claimed women could just travel to Alabama, Tennessee or Louisiana if they needed an abortion.
But Mississippi's law has greater implications now that a dozen states have followed in its legislative footsteps, and access to abortion becomes more lopsided when you head from one coast of the United States to the other. The provision, which supporters claim is necessary to protect women's health and safety, has effectively targeted specific clinics and doctors in states such as Texas, Alabama, Louisiana and Wisconsin.
In Texas alone, the provision closed about half of the state's abortion clinics, reducing access from 41 clinics to just 20 in 2013, according to the reproductive rights organization Fund Texas Choice. The admitting privileges law still remains in effect there, though two clinics — one in McAllen and another in El Paso — were exempted and allowed to stay open by a 5th Circuit ruling late last year.
The legal grounds for admitting privileges laws, however, are shaky. While a panel of judges for the 5th Circuit upheld the Texas measure in 2014, the law has also been consistently overturned by a federal courts. In August 2014, U.S. District Judge Myron Thompson gave the most critical ruling of the law yet in his decision to overturn Alabama's provision, which would have closed three of the state's five clinics. Thompson questioned the long history of anti-abortion violence in the Southeast, raised concerns over the law's true intent, and compared abortion rights to gun rights.
"This court, as a trial court, should not be in the business of picking and choosing which Supreme Court-recognized right to enforce or in deciding whether to enforce a right strongly or only somewhat," Thompson wrote. "So long as the Supreme Court continues to recognize a constitutional right to choose to terminate a pregnancy, any regulation that would, in effect, restrict the exercise of that right ... should be subject to the same skepticism."
Even if the Supreme Court declines to take up Mississippi's admitting privileges law this year, the case won't be settled yet. There's a good possibility, given the number of federal trials and appeals over the last year, that the law will again wind up before the nine justices in the near future.
And right now, most clinics in Alabama, Oklahoma, and Louisiana only remain open by a federal court order. Their future may be threatened alongside Mississippi's by the high court's uncertain ruling.
"There is no reason for the U.S. Supreme Court to step into this case," Center for Reproductive Rights President Nancy Northrup said in February. "The Court should decline to review the sound determination that Mississippi women would be irreparably harmed if the state were allowed to close its last clinic."
Images: Getty Images (2), Jackson Women's Health Organization/Facebook