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Miss. Wants an En Banc Shot at Abortion Law Appeal

By William Peacock, Esq. on August 18, 2014 | Last updated on March 21, 2019

The decision that kept Mississippi's only remaining abortion clinic open, despite a state law requiring the doctors working there to have admitting privileges at nearby hospitals (which were unwilling to extend such privileges), was so unusual that we gave it the double-post treatment.

We first talked about the Fifth Circuit panel's majority opinion, which relied upon an ancient, and some might say, inapplicable school segregation case to block the Mississippi law -- a decision that was especially curious considering a substantively identical law out of Texas was approved by this same court barely a few months prior. We then covered Judge Emilio Garza's vigorous dissent.

Now? We're looking an an en banc request from Mississippi, one that we wouldn't be surprised to see granted.

The Panel's Opinion and Dissent

Factually, the only difference between Texas' law and Mississippi's law is the effect -- Mississippi's law, as applied, would force the closure of the state's only remaining clinic. Interestingly enough, though driving hours through the massive state of Texas was held to not be an undue burden on a woman's right to an abortion, the panel in the Mississippi case held that crossing a state's border, even if the actual distance traveled is minimal, constitutes a constitutional violation.

Why? Because in Gaines, a 1938 segregation-in-education case, the U.S. Supreme Court held that a state couldn't fail to extend equal protection of its laws just because the affected citizen could get those same protections from a neighboring state. As the dissenting Garza pointed out, this is a due process dispute, not an equal protection problem.

Garza also pointed out that there is no state action here: The law requires a private party (the doctor) to get admitting privileges from another third party (a hospital). In the Gaines case, the state was providing the service -- an education through its universities.

Fascinating Argument in the En Banc Request

RH Reality Check points out a truly interesting argument made by the state. From their petition [PDF]:

"The Panel decision ostensibly promotes uniformity, at least in regard to the availability of abortion in every state. In actuality, the Panel places Mississippi at a disadvantage when larger states such as Texas are permitted to raise standards for abortion doctors, whereas Mississippi would be prohibited from applying the same standards to abortion doctors that it already applies to other physicians performing outpatient procedures."

Add in the apparent conflict with the Texas decision, plus the debatable extension of Gaines, and there are a lot of issues that an en banc court could address.

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