Last month, in Jackson Women’s Health Organization v. Currier, the U.S. Court of Appeals for the Fifth Circuit sustained an as-applied constitutional challenge to a Mississippi law requiring that “[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” (“admitting privileges”). The court of appeals concluded that applying this law in Mississippi would have the effect of closing the state’s one existing abortion clinic and would therefore impose an undue burden on women seeking to exercise their constitutional right to terminate a pregnancy. This column will consider the unusual—and fact-sensitive—approach that the Fifth Circuit here took to reviewing the admitting privileges law.
The Factual and Legal Background in Jackson Women’s Health Organization v. Currier
Over the last few years, at least nine states have passed admitting privileges legislation, aimed at making it more difficult for women to obtain an abortion. Demanding that abortion providers have admitting privileges at local hospitals presents difficulties for abortion clinics because many hospitals are hostile to the practice of abortion, whether for religious or other reasons (including, perhaps, a fear of anti-abortion protesters). When an abortion provider asks a local hospital for admitting privileges, he or she may accordingly face some of the same resistance that led the hospital not to offer abortion services itself.
When the abortion providers in the one remaining abortion clinic in the state of Mississippi sought admitting privileges at seven of the Jackson-area hospitals, no hospital was willing to grant either of the doctors these privileges. With admirable candor, the hospitals explained that the denial resulted from the doctors’ provision of abortion services.
This case was not the first time that the Fifth Circuit had occasion to review a law requiring that abortion providers have admitting privileges at local hospitals. Texas, for example, passed a virtually identical law, and the Fifth Circuit reviewed its constitutionality in March of this year. At that time, in Planned Parenthood v. Abbott, the three-judge panel unanimously upheld the Texas statute. The Fifth Circuit found that even though the law could result in women having to embark on several hours of travel (of up to 150 miles) in an effort to obtain an abortion, such travel requirements did not amount to an undue burden.
This earlier ruling was significant to the Fifth Circuit’s process of resolving Jackson Women’s Health Organization v. Currier, because it took some of the arguments against the Mississippi law off the table. Bound by the earlier ruling, the three-judge panel could not hold that the Mississippi law imposed an unconstitutional undue burden by virtue of forcing some women to travel to distant clinics, since the earlier decision in Planned Parenthood v. Abbott had already rejected the argument. The court also could not rule that admitting privileges requirements are necessarily, on their face, unconstitutional, since such a ruling would plainly be at odds with the earlier decision.
To rule in favor of the plaintiffs-appellees, then, the Fifth Circuit panel had to identify some feature of the Mississippi law that distinguished it from the already-approved Texas law. It found such a feature by referencing the striking reality that in Mississippi, because there is only one abortion clinic in the state and because its providers already tried unsuccessfully to obtain admitting privileges at local hospitals, the enforcement of the statute in question would effectively eliminate access to legal abortion in Mississippi. For this reason, a divided court concluded, the Mississippi statute, as applied, imposed an unconstitutional undue burden on women seeking an abortion. This ruling gave rise to two objections from the dissenting judge, Emilio Garza.
How to Assess the Relevant Burden for Undue Burden Analysis
In the earlier Fifth Circuit case, Planned Parenthood v. Abbott, the court acknowledged that some women seeking abortion would, as a result of the statute, have to travel up to 150 miles, but it concluded that this burden was constitutionally permissible (since 90% of women seeking abortion would only have to travel under 100 miles for the procedure). This accordingly made it difficult for the court in the Mississippi case to find that the virtually identical Mississippi law would impose an undue burden because of travel. The court therefore avoided this argument and found instead that in the state of Mississippi, the impact of the law is to eliminate abortion clinics from the state altogether and that such elimination constitutes an undue burden, regardless of the distances women might travel to reach an out-of-state clinic.
The court in this case thus focused on the state of Mississippi rather than on the trip that might be involved in traveling to an open clinic. The dissent took strong issue with this focus and said that women in Mississippi, like women in Texas, can still obtain an abortion, notwithstanding the law in question. Even assuming that the law in Mississippi makes getting an abortion more difficult, the dissent reasoned, it does so in exactly the same way as the law in Texas does: by increasing the distance involved in traveling to the nearest clinic. That is, whether the nearest clinic is in the state itself (but far away) or in a nearby state (like Tennessee, Louisiana, or Alabama), the burden on women seeking abortion is the same: some increased travel time that does not—under binding Fifth Circuit precedent—amount to an unconstitutional undue burden.
At first glance, this argument seems compelling. The majority, in other words, appears to be in denial about just how boxed in it is in virtue of the earlier decision regarding the Texas law. Upon closer inspection, however, the majority’s state-specific analysis is quite powerful and makes a lot of sense.
To see the power of the argument, consider, by analogy, a hypothetical Mississippi law providing that abortion is impermissible absent spousal notification. Under Planned Parenthood v. Casey, such a law would impose an unconstitutional undue burden on married women seeking an abortion. As the Fifth Circuit points out, moreover, the Supreme Court does not consider relevant the fact that a married woman could avoid having to notify her spouse simply by traveling to a different state, where abortion requires no spousal notification. Following the decision in Casey, the Fifth Circuit would thus presumably strike down a spousal notification law in Mississippi, notwithstanding the availability of abortion in other states.
The Fifth Circuit convincingly reasons that each state has an obligation to refrain from violating constitutional rights, and none can evade that obligation by relying on other states to supply the constitutional protection that it denies. If a state could offload its constitutional obligations to other states, then abortion could effectively (if not explicitly) become illegal in every state without violating the Constitution, on the theory that women could still travel to Canada or Japan to obtain an abortion.
This approach—the logical culmination of the dissent’s position regarding neighboring states—has to be wrong. Each jurisdiction is bound to respect the Constitution within its boundaries, the only area over which it has legislative authority. If Mississippi has effectively prohibited abortion within its territorial boundaries, then it has imposed an undue burden upon women seeking an abortion, regardless of whether women could obtain an abortion elsewhere. To assess whether a state has created an undue burden, then, it makes eminent sense to examine the state’s actions vis-à-vis the area that the state actually controls, rather than the impact of its actions in areas outside of its jurisdiction and control.
How to Assess the Impact of the Law for State Action Purposes
In addition to invoking the availability of abortion in neighboring states, the dissent in the Mississippi case contends that it is simply inaccurate to describe the Mississippi law in question as having the legal effect of closing the last abortion clinic in the state: “[t]he direct, legal effect of House Bill 1390 [the Mississippi law] is only to mandate [admitting privileges].”
Even if it were appropriate to look only to the state of Mississippi in evaluating the effect of the law, in other words, a premise with which Judge Garza disagrees, it is still important to figure out who is responsible for eliminating access to abortion in Mississippi before holding the state accountable for that elimination. The state action doctrine requires as much.
Judge Garza’s point is a very interesting one, because the right to abortion does necessarily implicate the state action doctrine, since the abortion entitlement is a right against active state interference. Proximate causation is a feature of the state action doctrine. To understand how the relation between state action doctrine and proximate causation works, consider the case of DeShaney v. Winnebago County.
DeShaney involved a decision by a county department of social services not to remove an abused child from his father, despite complaints. Remaining in his father’s custody, the boy suffered a beating from his father that rendered him brain damaged and profoundly intellectually disabled. Joshua DeShaney and his mother subsequently brought a lawsuit under 42 U.S.C. § 1983 against the Department of Social Services, arguing that by failing to intervene to protect the boy from his father’s violence, the Department denied the boy his rights under the Due Process Clause of the Fourteenth Amendment. The Supreme Court rejected the claim, finding that the Constitution governs only state action—that is, action by a government entity—and DeShaney’s injuries resulted from private action by his father, not action by the state.
As a matter of factual causation—whether the government’s failure in fact resulted in the boy’s injuries—the state’s failure did lead to those injuries. It is plain, then, that the causation requirement implicit in state action doctrine is a matter of legal causation—something beyond factual causation that makes it fair and proper to blame the harm experienced on the conduct of the state entity. The Court then reasoned that the Due Process Clause generally imposes no affirmative duties upon the government, and the government in DeShaney merely failed to act but did nothing affirmatively harmful to cause the boy’s injuries. There was accordingly no state action in DeShaney, where the government was guilty only of inaction.
Returning to the Mississippi abortion case, Judge Garza contended in his dissent that Mississippi state law did not close the last remaining abortion clinic in the state. It simply required that providers obtain admitting privileges at a local hospital. It was the local hospitals—private, non-state actors—that made the decision to refuse the providers’ requests for admitting privileges, and it was accordingly a non-state actor’s behavior—not the conduct of the state—that eliminated women’s access to abortion procedures in the state of Mississippi.
As a matter of factual causation, both the statute and the conduct of private hospitals resulted in the elimination of abortion access in Mississippi. Had either Mississippi or the relevant hospitals behaved differently, then the one remaining clinic could have continued to operate without violating state law. Judge Garza’s argument is accordingly a proximate cause argument. He believes that one ought to attribute the closure of the last clinic to the private hospital’s refusal to grant admitting privileges rather than to the state law requiring that abortion providers acquire such admitting privileges.
Responding to this objection is difficult, given the apparent unwillingness of the Fifth Circuit to acknowledge that the purpose of admitting privileges requirements is to restrict access to abortion. I mention this unwillingness because Casey explicitly says—as the Fifth Circuit quotes in its opinion—that “[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right” (emphasis added). Had the Fifth Circuit in the earlier Texas decision taken the purpose prong of this test seriously, it would not have had to closely examine the impact of such laws. And if the court did decide to examine their impact, it would have been clear that such laws proximately cause the burdens on access to abortion. When the state intentionally brings about a result in precisely the manner contemplated, then we have proximate cause.
Once we are operating, however, in a world in which we pretend that admitting privileges laws only incidentally and unintentionally block access to abortion but have some independent health purpose, it becomes fair to ask whether we can appropriately attribute the “incidental” effect of the law on abortion access to the legislation itself or to the private conduct empowered and enabled by that legislation. Nonetheless, even given this imagined world in which admitting privileges abortion legislation is about something other than limiting access to abortion, it seems the answer to the proximate cause question remains yes.
When only one clinic in the entire state offers abortion services and the surrounding hospitals are hostile to such services, the admitting privileges requirement has the foreseeable consequence of closing the clinic and is therefore the proximate cause of that consequence. Unlike in DeShaney, a finding to this effect is not tantamount to demanding action from the state: had the state done nothing to regulate abortion practice in the first place, the clinic would be able to operate without legal obstacle. All the state had to do, to comply with the Constitution, was refrain from interfering with abortion services willingly provided by private actors.
For the reasons I describe, I think the Fifth Circuit’s opinion—bound as it is by prior precedent—is generally sound, and its state-focused analysis is even elegant and compelling. It is worth noting, however, that prior precedent minimizing the burdensome nature of added travel time to the project of obtaining an abortion is unfortunate. Having to travel long distances and take time off from work is prohibitive for many women. This reality may explain why most people seek medical care (of all sorts) at local hospitals rather than traveling to the best medical centers in the nation.
Women who elect to have an abortion, for the many reasons that women do, truly face an undue burden when they have to travel many miles for the procedure, especially if they need to visit a clinic more than once (either for follow-up care or to satisfy a 24-hour waiting period) and/or do not get paid for time taken off from work. If courts were able and willing either to recognize the impermissible purpose of such legislation or to frankly consider the insurmountable burdens that travel can pose, the court might not have needed to rely on a creative (albeit convincing) argument that focuses on the (un)availability of abortion within the state of Mississippi.