Author: Rebecca Dussich, Associate Member, University of Cincinnati Law Review
Since the Supreme Court’s decision granting women the constitutionally protected right to seek and obtain abortions in Roe v. Wade, various individuals, organizations, and government bodies have pushed back against the ruling through legislation and additional lawsuits. Although many of these attempts have been successful, a recent Fifth Circuit decision, Currier v. Jackson Women’s Health Organization, may signal an impending shift in the battle to maintain access to reproductive rights across the country. Although the decision in this case is explicitly narrow, affirmance by the Supreme Court could establish a standard in which laws that totally eliminate all clinics within the borders of a state violate Roe by abdicating a state’s constitutional responsibilities to another, neighboring state. By reinforcing constitutional rights that have been weakened over time, such a change could represent a tremendous leap forward for women’s rights across the country. The Court is expected to decide on the appellant’s petition for certiorari soon and should review and affirm the lower court decision, affirming once again that reproductive care is not merely a convenience but a constitutionally protected right.
How “Admitting Privileges” LawsHave Impacted Access
Over time, the initially broad rights established in Roe have been effectively chipped away and restricted to the point of almost disappearing in certain parts of the country. Among other tactics, groups seeking to limit a woman’s right to choose an abortion have worked to pass state laws that ban abortion after a certain number of weeks of pregnancy; require parental consent for girls seeking an abortion under a certain age; institute a waiting period between the initial consultation and the actual procedure; or otherwise make access more difficult. Across the country, state legislators have utilized these impediments to attack reproductive rights, restricting what was once a constitutionally protected right almost to the point of extinction.
More recently, states have instituted laws that require abortion facilities and the physicians that work in such facilities to obtain transfer agreements or admitting privileges from local hospitals. Under the guise of “safety” for women who obtain abortions, these laws require abortion providers to establish contractual relationships with hospitals in order to, ostensibly, guarantee access to emergency care if a problem occurs during an abortion procedure. These restrictive and unnecessary laws have led to the closure of abortion clinics across the country in record numbers, leaving several states with only a few operating clinics. In light of these trends, advocates for a woman’s right to choose were understandably surprised by the Fifth Circuit ruling in Currier. The ruling affirmed a lower court decision to enjoin the state of Mississippi from enforcing an admitting privileges law against the state’s last remaining abortion clinic this past July. To be clear, the ruling in this case was extremely narrow and there is no guarantee that the Supreme Court will affirm the Fifth Circuit’s decision—or even take up the case this term at all. But this case has garnered tremendous media response, as it could potentially provide a much needed stop-gap against the onslaught of restrictive anti-choice legislation that has been passed by state legislatures over the decades following Roe. And this specific case, for all its flaws, bears a striking resemblance to issues faced by other states, giving advocates reason to hope that the Supreme Court will grant certiorari for this case and take its favorable ruling to the national level.
A Mississippi Clinic Fights Back…and Wins!
In April 2012, Mississippi’s state legislature passed a bill that required “[a]ll physicians associated with [an] abortion facility must have admitting privileges at a local hospital and staff privileges to replace local hospital on-staff physicians.” This bill was considerably more restrictive than the prior state law, which had required only that at least one physician within an abortion clinic have such privileges. As a result, the state’s one remaining clinic, run by the Jackson Women’s Health Organization (JWHO), was at risk of closing even after several attempts at establishing the necessary relationships with local hospitals. In response, JWHO brought suit in federal district court, seeking a preliminary injunction barring “the State from imposing any civil or criminal penalties on JWHO for the continuing operation of the Clinic while its doctors sought the privileges.” The district court granted the injunction as requested, but state officials denied JWHO’s request for a waiver for the physicians that were unable to obtain privileges and set license revocation processes in motion.
Once again, JWHO filed suit, arguing that the admitting privileges statute “would impose an undue burden on women’s right to choose abortions” in violation of Supreme Court precedent. The district court granted the requested injunction, holding that because this law would result in closure of the last remaining abortion clinic in the state, “an undue burden would likely result.” In response to the State’s appeal, the Fifth Circuit first addressed the issue of whether the State had a rational basis for passing this law. Next, they discussed whether the law presented an undue burden, as indicated by the lower court. Citing Planned Parenthood v. Casey as the standard for all such cases, the court did not dispute that Mississippi satisfied the rational basis standard in this case because they had allegedly passed the law in the interest of protecting women’s health. However, the lower court’s ruling regarding undue burden was upheld (albeit slightly altered) by the Fifth Circuit.
Mississippi state officials argued that, although closure of this clinic would leave the state entirely without an abortion provider, clinics were readily available in neighboring states. The state continued that while this would increase traveling distance for women seeking abortions, the necessity of crossing a state line to access an abortion was not, in itself, unduly burdensome. Despite this argument, the Fifth Circuit held that precedent does not support this assertion. First, when the Supreme Court struck down a spousal notification law in Pennsylvania, the fact that women could simply cross state lines to seek an abortion and not be required to involve their husbands did not enter the discussion. And, when the Supreme Court affirmed a Tenth Circuit decision to strike down a twenty-week abortion ban out of Utah, the Court did not dispute the appellate court’s focus on the impact of the law specific to women within Utah.
Second—and, most notably—the Fifth Circuit held that an affirmative action case out of the late-1930s had an important role to play in the analysis. Despite the vastly different subject matter and a different constitutional provision being implicated, State of Missouri ex rel. Gaines v. Canada was cited as indicative of the Supreme Court’s stance on whether state borders should be taken into consideration when evaluating constitutional issues. In Gaines, the Court held that
the obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction…That obligation is imposed by the Constitution upon the States severally as governmental entities—each responsible for its own laws establishing the rights and duties of persons within its borders. It is an obligation the burden of which cannot be cast by one state upon another, and no State can be excused from the performance of what another State may do or fail to do.
Although this case is factually distinct from Currier, it is at the heart of the Fifth Circuit’s analysis. The court held that “Gaines simply and plainly holds that a state cannot lean on its sovereign neighbors to provide protection of its citizens’ federal constitutional rights, a principle that obviously has trenchant relevance here.” With this in mind, the Fifth Circuit upheld the lower court’s preliminary injunction; and as expected, the Mississippi officials that are subject to the injunction have petitioned to the Supreme Court for review. In light of the Fifth Circuit’s analysis, this case could lay the foundation for a very important Supreme Court ruling moving forward—that is, if the Court even chooses to review it.
The Broader Implications of a Ruling in Favor of JWHO
Because this ruling favors the JWHO clinic, advocates for choice may be inclined to hope that the Supreme Court does not grant Mississippi’s Petition for Writ of Certiorari. Leaving the ruling as is would certainly have a positive impact on states within the Fifth Circuit. Some of the nation’s most abortion-restrictive states fall within this circuit and, with this ruling as precedent, the last remaining clinics in these states could be protected. This argument is certainly valid, but Supreme Court affirmance would mean expanding this protection to the entire country – a result that could have far-reaching impacts for the broader reproductive justice movement. JWHO has even filed a brief in opposition to the petition, reiterating the Fifth Circuit’s holding that the precedent is already clear on the matter. Although there are no known examples of a state being permitted to abdicate its constitutional responsibilities to neighboring states, this has not yet been discussed in the context of abortion rights. JWHO is understandably invested in leaving the Fifth Circuit decision untouched, but waiting for other circuits contradict this decision before supporting Supreme Court review has potentially dangerous implications for the women who are so often left behind in the wake of abortion litigation. The Court is scheduled to discuss the case in conference shortly, and subsequently, should accept the petition and review the case on the merits later this term.
Of course, there is no reliable way to predict how this issue will play out in the Court moving forward. But the potential impact of a Supreme Court affirmance is impossible to deny. With abortion clinics closing left and right, access to abortion is under siege. Despite multiple Supreme Court rulings reaffirming this constitutional right, unnecessarily restrictive state laws like the one at issue here have gotten us precariously close to losing access altogether. Although support of the Fifth Circuit’s analysis would do little to undo the damage done where clinics have already closed, it could possibly mean that each of the fifty states would be required to maintain at least one clinic, thus providing some protection from the attacks being lobbied against clinics and abortion providers across the nation. The Supreme Court should accept and affirm this case, sending a message to elected officials throughout the United States that constitutionally protected rights must not and shall not be snuffed out under the guise of state-by-state legislative preference.
 410 U.S. 113 (U.S. 1973).
 Jackson Women’s Health Org. v. Currier, 760 F.3d 448 (5th Cir. 2014), petition for cert. filed, Currier v. Jackson Women’s Health Org., 2015 U.S. S. Ct. Briefs LEXIS 606 (2015).
 This trend started with Planned Parenthood v. Casey, 505 U.S. 833, 872 (1992), which eliminated the trimester framework established by Roe and held that, instead, a pre- versus post-viability standard was more appropriate, while allowing states to restrict abortion access if, using a rational basis standard, the state could establish a legitimate interest in the restriction while not presenting an “undue burden” on the woman seeking an abortion; this case upheld such provisions as 24-hour waiting periods, parental notification for minors, dissemination of any truthful information that may dissuade a woman from obtaining an abortion, and hospital record keeping requirements, while striking down spousal notification laws. Much of the jurisprudence upholding restrictions on abortion cites Casey as the primary talisman.
 Currently, the following states ban abortions after as early as 20 weeks, a point at which not all women even know that they are pregnant: Alabama, Arkansas, Indiana, Kansas, Louisiana, Mississippi, Nebraska, North Carolina, North Dakota, Oklahoma, and Texas. Missouri, South Dakota, and Utah require the longest waiting periods, currently at 72 hours and all but 13 states have some measure of parental notice or consent currently in effect for minors. State Policies in Brief: An Overview of Abortion Laws, Guttmacher Institute, Apr. 1, 2015, http://www.guttmacher.org/statecenter/spibs/spib_OAL.pdf.
 Fourteen states require that abortion providers have some sort of transfer agreement or admitting privileges with a hospital in the area. State Policies in Brief: Targeted Regulation of Abortion Providers, Guttmacher Institute, Apr. 1, 2015, http://www.guttmacher.org/statecenter/spibs/spib_TRAP.pdf. These laws require that physicians establish contractual relationships with local hospitals (in some cases, even within a certain, statutorily required distance) that allow the physician to treat patients in that particular hospital, i.e. if some sort of problem arises during the course of an abortion procedure, the physician can take the patient to that hospital and address that complication, utilizing the hospitals equipment, nursing staff, etc. However, these agreements can be difficult to establish, as they often require physicians to bring a certain minimum number of patients to that hospital in a given period of time. Even more problematic is hospitals’ refusal to sign on to such agreements for religious reasons or to avoid the likely controversy that would result. See Sandhya Somashekhar, Admitting-privileges laws have created high hurdle for abortion providers to clear, Aug. 10, 2014, http://www.washingtonpost.com/national/2014/08/10/62554324-1d88-11e4-82f9-2cd6fa8da5c4_story.html.
 This kind of need for emergency care is extremely rare during the course of an abortion and, more importantly, hospitals are federally mandated to accept patients who arrive at their door in need of such emergency care regardless of any kind of transfer agreement or admitting privileges contract. So, should a woman find herself in need of emergency medical attention during the course of an abortion procedure, a transfer agreement or admitting privilege is likely unnecessary to protect the health of the woman in question. In light of these facts, many pro-choice advocates argue that states who enact these laws cannot establish the requisite rational basis needed to support their constitutionality. However, courts have yet to accept this argument as legally valid.
 For instance, Mississippi, North Dakota, South Dakota, and Wyoming each currently only have one clinic in the entire state, while other states—including Ohio—have seen massive closures in response to these laws. Esme E. Deprez, The Vanishing U.S. Abortion Clinic, Bloomberg, Jan. 7, 2015, http://www.bloombergview.com/quicktake/abortion-and-the-decline-of-clinics.
 Jackson Women’s Health Org., 760 F.3d 448.
 H.R. 1390, 2012 Regular Session (Miss. 2012).
 Miss. Admin. Code 30-17-2635:2.5(B).
 Jackson Women’s Health Org., 760 F.3d 449-50. Although one of the clinic’s physicians had already established the necessary privileges with a local hospital, the remaining two physicians were rejected by every hospital in the area. There is some indication that this process lead to rather antagonistic interactions with hospital officials, so much so that two of these physicians were so concerned about Mississippi’s hostility toward abortion practices that they requested to participate in the suit under the pseudonyms “Dr. Doe” and “Dr. Roe.” The lower court judge granted this request and these pseudonyms are used throughout court documents.
 Id. at 450.
 Id. at450-51.
 Id. at 451.
 Id. at 452.
 Id. at 454.
 Id. at 455-56.
 Id. at 464, n. 13.
 The state provided a list of available clinics, as well as their respective distances from Jackson, Mississippi: West Monroe, Louisiana (121 miles away); Tuscaloosa, Alabama (185 miles away); Baton Rouge, Louisiana (174 miles away); and Memphis, Tennessee (209 miles away). Id. It is important to point out that, in its analysis of this issue, the Fifth Circuit declines to accept JWHO’s argument that these distances are, in and of themselves, unduly burdensome, as they require a level of travel that may be prohibitive for women with low-incomes, jobs that do not provide vacation days, small children at home, etc. Unfortunately, precedent currently supports this analysis, despite the fact that it does not reflect reality for many women.
 Id. at 456-58.
 Id. at 456 (citing Casey, 503 U.S. at 893-94).
 Id. at 456 (citing Jane L. v. Bangerter, 102 F.3d 1112, 1114 (10th Cir. 1996), cert. denied, 520 U.S. 1274 (1997)).
 Id. at 457-58.
 305 U.S. 337 (1938).
 Jackson Women’s Health Org., 760 F.3d at 457-58.
 Id. at 457 (quoting Gaines, 305 U.S. at 350, emphasis added).
 Id. at 457.
 Id. at 457-58. The Fifth Circuit did make some modifications to the lower court’s ruling, adding that the State is only enjoined from enforcing the admitting privileges law against this specific clinic. Because JWHO is the only clinic in the state, that may seem superfluous, but it does leave the door open to another suit if JWHO or another organization attempts to open an additional clinic in the state.
 Petition for Writ of Certiorari, Jackson Women’s Health Org., 760 F.3d 448.
 The Fifth Circuit covers Louisiana, Mississippi, and Texas, three states that have each recently drawn the attention of the national media for anti-choice legislation.
 Brief in Opposition to Petition for Writ of Certiorari, Currier, 2015 U.S. S. Ct. Briefs LEXIS 606.
 Id. at 11-12.