By Nancy Northup
Imagine that a group of state legislators didn’t like a particular religious denomination and decided to run it out of state by enacting new building codes applicable to only them, enumerating countless requirements for the number of parking spaces churches must have, the space between pews and the size of their steeples — knowing that no church could meet them without backbreaking costs.
Imagine if these same politicians passed a law barring the denomination from opening its church doors without ministers with faculty appointments at a local divinity school — whose administration, for ideological or business reasons, is predisposed to reject their appointments. Never mind that the ministers hold graduate degrees from leading divinity schools, were ordained in a rigorous process that tested their knowledge and fitness to serve and hold faculty appointments elsewhere.
Imagine the denomination’s congregants filed a lawsuit claiming that the state was violating their constitutional rights, and the state argued that those rights were not imperiled because they could drive out of state to attend church elsewhere. If these restrictions were upheld, could it honestly be said that the constitutional rights of these citizens were respected?
This is no mere thought experiment. Whether a state government can defend violating your constitutional rights by saying you can simply exercise them next door is the question before federal courts across the country right now with respect to women’s constitutionally protected right to abortion.
Already this year, the U.S. Court of Appeals for the Fifth Circuit has considered two cases focusing on laws in Texas and Mississippi designed to regulate abortion providers out of practice. In these states, any physician who provides abortion services must obtain admitting privileges at a local hospital — which are often difficult to obtain due to the political and business interests of hospitals and which a trial court in Texas found “have no rational relationship to improved patient care.” Similar laws in Alabama and Wisconsin are also being challenged in federal court, with both laws blocked and scheduled for trial in the coming weeks.
FATE OF REPRODUCTIVE HEALTH
These cases stand to decide the fate of reproductive health care clinics in these states and in turn, the future of women’s ability to access safe and legal abortion within those states’ borders.
This isn’t just conjecture, the devastation is evident. After a Fifth Circuit panel unraveled a trial court decision blocking Texas’ law, nearly a third of the state’s clinics had to stop providing abortions and many were forced to close — leaving thousands of women without a single abortion provider for more than a hundred miles.
And that’s before another, even more onerous provision takes effect this September — one that would require the vast majority of remaining clinics to rebuild themselves, at tremendous cost, into mini-hospitals unlike the facilities of any other doctors providing similar outpatient services. This requirement could leave Texas, which has a female population of 13 million, with fewer than 10 abortion clinics far out of reach of many of the state’s most remote and impoverished populations. So while the challenge to Texas’ admitting-privileges law awaits word from the Fifth Circuit on a petition for rehearing en banc, many thousands of women are left with dwindling safe and legal options.
Meanwhile, Mississippi’s last remaining clinic hangs on by a federal district court injunction blocking that state’s admitting-privileges law. Another panel of the Fifth Circuit will soon decide whether to allow that injunction to remain in effect pending a trial on the merits — a ruling that will ultimately decide whether Mississippi will become the first state since Roe v. Wade without a single abortion provider.
More than a dozen cases challenging state abortion restrictions are currently pending in federal courts, leaving little question that these issues are hurtling their way toward the U.S. Supreme Court. These laws are being challenged as blatant violations of women’s due process rights under the Fourteenth Amendment. But, incredibly, states have been arguing that even if abortion becomes impossible to obtain within their borders, women can still travel out of state — which, of course, was true for women in Texas before Roe v. Wade, when those with means could travel to New York or California. Many federal judges have rejected these arguments, including U.S. District Judge Daniel Jordan III in Mississippi. In blocking the admitting-privileges law there, Jordan said it would “result in a patchwork system where constitutional rights are available in some states but not others.”
Although the undue-burden standard is not a model of clarity, the Supreme Court has not allowed states to impose restriction upon restriction, without any rational basis or medical necessity, as a way to eliminate abortion. Nor has the court ever allowed a state to rely on neighboring states to fulfill its citizens’ rights. The court made clear in the Jim Crow era that states could not force its African-American citizens to travel out of state to get the equal treatment their own states were denying them.
If the Supreme Court accepts review in one of the many cases heading its way, it will provide a critical opportunity to once again make clear that the right to reproductive choice applies equally to women in every state — and that the obligation to fulfill it cannot be passed off to others. Failing that, the meaning and worth of our constitutional rights and protections are in serious peril indeed.
Originally published in The National Law Journal