Is One Key Anti-Abortion Attack Beginning To Fall To Pieces?

If there’s one attack that anti-abortion activists and lawmakers have seized upon in recent years to shutter abortion clinics, it’s this: Require those clinics to have hospital admitting privileges.

When September comes and most of them are put into effect, they are expected to leave behind a patchwork-quilt of access in low-clinic states. But reproductive rights advocates are cautiously optimistic that recent court rulings may finally stem the tide on these medically unnecessary restrictions.

At first, activists weren’t so optimistic. Last summer, Texas passed an omnibus abortion bill called H.B. 2, which incidentally launched state Sen. Wendy Davis (D) to national fame. But the bill itself was atrocious for pro-choice activists: among other regulations, the bill mandated admitting privileges for abortion providers and burdened providers with building requirements, forcing many to choose between rebuilding their entire structures or close their doors. When it was challenged in court, a three-judge panel in the 5th Circuit claimed that massive travel time and limited access to a clinic isn’t an undue burden to the right to an abortion; it was just an inconvenience for those seeking care.

Thus, both sides of the abortion fight eagerly anticipated a ruling from another panel of judges in the 5th circuit, this time addressing a similar admitting privileges requirement in Mississippi. But this time, rather than closing some of the nearly two dozen clinics in Texas, the law had the potential to close the only remaining clinic in Mississippi.

The ruling, which came last week, in essence stated that admitting privileges on their own are not an undue burden on their own. In Mississippi’s case, however, they would be unconstitutional, since the law was intended was to close Jackson Women’s Health Organization, thereby trying to “shift [Mississippi’s] obligation to respect the established constitutional rights of its citizens to another state.”

It was ultimately a mixed bag for pro-choice activists. While it kept the doors of the Jackson Clinic open, it didn’t say explicitly is whether closing most of the clinics in a state is still allowable. Some see that as a concern for upcoming cases that are currently making their way through the court system.

Jessica Mason Pieklo, legal analyst for reproductive health websites RH Reality Check, notes that the majority opinion cites that the undue burden standard – a previous court ruling that says you can limit abortion as long as it doesn’t result in it being so difficult to obtain that pregnant people lose their ability to procure one – applies if you look at just the clinics inside the state that would be impacted by the law if it were allowed to go into effect—but may not if you considered access to clinics outside the state, which the court did not do.

“Even when the Fifth Circuit has the opportunity to affirm the fundamental constitutional personhood of women, it just can’t bring itself to do so,” writes Mason Pieklo.

Looking at the Mississippi and Texas rulings together, things looked pretty bad for the two states waiting to hear back on their own admitting privileges challenges: Wisconsin and Alabama. In both cases the law looks as if it would fall more under the standard the court set up in the Texas case than the Mississippi one. In both states, there would be other abortion clinics within the border to provide for patients even if the law went into effect, and neither state has a Mississippi-like problem where their clinics under injunction are the last providers standing.

Yet the “is the state shifting their constitutional duty to provide abortion to another state” question is likely what tipped Alabama’s law into being blocked as well.

“When the state of Alabama argued in defense of the admitting privileges bill, they made the case that person could always cross state lines to get an abortion,” said Susan Watson, Executive Director of the ACLU in Alabama, in an interview prior to the ruling. “They said people could travel to Pensacola, Florida or Columbus, Georgia or Nashville, Tennessee to get services. What the 5th circuit said is that it is an undue burden to foist your constitutional obligations onto other states. I think that bodes well for Alabama.”

Alabama’s ruling on Monday would have reduced access in Alabama down to a one clinic state because only Tuscaloosa’s clinic is in compliance with all of the state’s rules. (A Huntsville clinic surrendered its own license last month because it could not meet the building standards mandated under the same bill in its current location. It has moved to a new location but has not yet received a new license while the city debates whether or not it should be allowed to reopen.)

That eliminating all but one clinic in the state inevitably means shifting the right to an abortion onto neighboring states worked in Alabama, especially since even the state itself used it in their legal arguments. Could the same argument work in Wisconsin?

In Wisconsin, where a federal judge is expected to rule by the end of summer, the admitting privileges bill would only close one clinic of the four still operating in the state. In fact, if Affiliated Medical Services (AMS) in Milwaukee is closed, there would still be another clinic in the city to offer services. The same “shifting to other states” standard would apply in Wisconsin, too, as legal representatives opposing the admitting privileges law noted during trial.

Planned Parenthood of Milwaukee testified that their wait for an abortion was already two to three weeks long, and that if AMS were to shut their doors that wait could extend to eight to ten weeks, forcing patients to either wait for a second trimester procedure or head to the next nearest city for care – likely Chicago, Illinois.

The patchwork approach of shutting most, but not all, of the clinics in each state was designed with a distinct legal purpose in mind. The assumption was that legally, courts would be comfortable with the argument that as long as there is a clinic in the state, that one provider meets the bare minimum standard a state has to offer in order to say that technically abortion is legal and available. The 5th circuit even confirms that standard within its own ruling when it reaffirms the precedent in he previous Texas ruling.

However, the “shifting constitutional obligations” language opens up a new potential for arguments that doesn’t just offer optimism for Wisconsin, but for Oklahoma and Louisiana, as well. When their own laws go into effect Sept. 1 and are inevitably challenged, the undue burden that comes with obtaining an abortion becomes more pronounced. Even the options for women to go outside the state’s borders get more limited if laws are allowed to go into effect.

Of course, in the end, what will really matter is what the Supreme Court decides, and at this point, there is little doubt that that is where all admitting privileges laws are heading. But the more rulings blocking admitting privileges there are in the lower courts, the harder it could become for the Supreme Court to decide in favor of the regulation, and the more clinics will remain open to offer services during the years it could still take to get a case to the court and get a ruling.

Robin Marty is a freelance writer, speaker and activist, and the author of Crow After Roe: How Women’s Health Is the New Separate But Equal and How to Change That. Marty’s articles have appeared at Cosmopolitan Magazine, Rolling Stone, Daily Beast, Bitch Magazine, Ms. Magazine, In These Times and other publications.

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In this Aug. 2, 2013, photo, longtime abortion clinic operator Diane Derzis stands outside a building she owns where abortions are performed in Birmingham, Ala. State regulators have been trying since 2012 to shut down the clinic, that was cited for rampant health violations, and a judge has set a hearing for Monday, Aug. 5, 2013 to decide whether it should remain open. (AP Photo/Jay Reeves)