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Whilst everyone is arguing about the propriety of a three-judge panel of the D.C. Circuit taking the words of a statute literally, a three-judge panel of the Fifth Circuit decided to show the world what a really terrible judicial opinion actually looks like. In a split decision, the Court ruled in Jackson Women’s Health Organization v. Currier that Mississippi H.B. 1390, which required doctors who performed abortions at abortion clinics to have admitting privileges at a local hospital, violated the Constitution. The Court’s decision is an atrocity against the law, reason, and the facts of the case before it. If any intellectually honest liberals still exist and would like to know what bad, lazy, partisan and activist judging looks like, they need look no farther than this opinion.
A little historical and factual background is in order to understand this decision. The Jackson Women’s Health Organization (JWHO) is the only facility in the State of Mississippi that performs abortions. Two of the three doctors who perform abortions there did not have admitting privileges at any local hospital. As a result of prior orders entered by the District Court, the doctors in question attempted to apply for admitting privileges at several local hospitals. Allegedly, these doctors’ applications were rejected in whole or in part because of the fact that they perform abortions. There is some question per the dissent about whether this action on the part of the hospitals was in fact legal; however, there is no dispute that the reason the clinic faced closure was due to the actions of these hospitals and was totally unrelated to any action taken by the State of Mississippi.
By way of further background, the Fifth Circuit had previously already taken up the Constitutionality of an identical Texas statute and found that it passed constitutional muster – noting specifically that a) the regulation in question passed rational basis review and b) that it did not impose an “undue burden” on a woman’s “right” to an abortion even if it meant that she had to drive over 150 miles to attain one. Indeed, both the majority and dissent note the existence of a long line of cases that specifically say that regulations that make abortions more expensive or that have the incidental effect of requiring women to travel distances to obtain one do not impose an undue burden on the exercise of the abortion “right.”
This makes both practical and legal sense. What the Court purported to concern itself with in Planned Parenthood v. Casey (which itself was a judicial abomination of the highest order) was a burden imposed upon the exercise of the right itself, not a burden upon the convenience of finding a location that would aid in the exercise of that right. In other words, a law forbidding any abortion performed after 8 weeks of gestation would at least theoretically implicate the “undue burden” analysis of Casey, or a law requiring a woman to obtain spousal consent before obtaining an abortion. Here, the operation of law directly impacts the exercise of the right itself. Where the operation of a law of general application by happenstance makes it so that fewer locations are willing to perform abortions, that is not an undue burden placed on the exercise of the “right” by the operation of the law of the state.
After all, theoretically, all the abortion providers within a given state might withdraw from the abortion provision business voluntarily due entirely to market forces (say, hypothetically, if so many Delaware women traveled voluntarily to Pennsylvania or Maryland to obtain their abortions that a clinic in Delaware wouldn’t be economically viable); in these cases, the state would presumably not be required to ensure that some private entity existed within its boundaries that provided abortions.
While paying lip service to all this precedent before them, the majority opinion, authored by Judge E. Grady Jolly, in fact spit enthusiastically upon them, inventing out of whole cloth a right for a woman to receive an abortion performed within her own home state (even if, as was the case for a majority of Mississippi residents before the passage of HB 1390, an out-of-state clinic is closer and more convenient than the Jackson clinic in question). By tortured reasoning, the majority grafted a case involving equal protection in education – a case that had by its own admission never before been used in the abortion context in the entire lengthy and voluminous history of abortion jurisprudence – to declare that Mississippi had an affirmative obligation to ensure that some private entity in Mississippi provided abortions for Mississippi women.
Despite vain and empty protestations to the contrary, the majority’s opinion leads to the clear conclusion that Mississippi could pass literally no law that would result in JWHO closing. If Mississippi passed a law that said “Abortions may not be performed in clinics where nuclear waste is stored,” this law would be invalid if JWHO decided to store nuclear waste at their clinic. This may sound extreme and the majority’s opinion strenuously denies that it intends this result, but this is without a doubt the result that is created, in light of the majority’s stated principle that Mississippi cannot pass any legislation – even one that passes a rational basis test and clearly serves a legitimate state interest – that would have the result (even incidental) of closing Mississippi’s last abortion clinic.
As Judge Emilio Garza (one of the best Circuit judges in the country) noted in dissent:
The majority concludes by denying that it establishes any per se rule. “Nothing in this opinion,” the majority declares, “should be read to hold that any law or regulation that has the effect of closing all abortion clinics in a state would inevitably fail the undue burden analysis.” Ante at 17. Attempting to narrow its holding to the specific facts of this case, the majority claims to base its holding on “the entire record and factual context in which the law operates,” including “the statutory provision in question,” “the ability of the Clinic to comply with H.B. 1390,” “the reasons cited by the hospitals for denying admitting privileges,” and the “nature and process of the admitting-privileges determination.” Id. In so doing, the majority professes to leave open the possibility that some law, such as the “hypothetical sanitation regulation” discussed in the State’s briefing, could cause the closure of all abortion providers within a state and yet still be constitutional. Id. at 16–17.
The majority’s attempt to cabin its holding to the facts of this case betrays its awareness that crossing Mississippi’s borders cannot be dispositive. Yet notwithstanding this attempt, today’s opinion concludes in no uncertain terms: “Gaines instructs us to consider the effects of H.B. 1390 only within Mississippi in conducting an undue burden analysis.” Id. at 18. The majority simply cannot have it both ways. So long as the undue burden analysis is confined by Mississippi’s borders, the closure of that state’s sole abortion provider must be an undue burden.
Even accepting that the majority’s factors somehow narrow its holding, I find its ad hoc approach to be unworkable. The majority does not even attempt to explain how this case’s “factual context,” the “statutory provision” at issue, and the “nature and process” of the admitting-privileges requirement purportedly combine to make this burden “undue.”Ante at 17. The message for future courts and litigants is that a law causing the closure of all abortion providers in a state imposes an undue burden—unless it does not impose such a burden. The use of such an unprincipled approach to strike down as unconstitutional a state’s exercise of its sovereign power to protect its citizens
is particularly troubling.
I suspect that, like Halbig, this case will be heard by the Fifth Circuit en banc and likely overturned. In the meantime, JWHO will continue to operate without safeguards enacted by the duly-elected representatives of the State of Mississippi and properly passed into law. All of this in the name of a blatant ideological bias and clear predilection to ensure the unfettered worship of Moloch at all costs.
This transparent obsession with the destruction of the most vulnerable form of human life at the behest of a powerful corporate lobby bent on preserving profits by avoiding compliance with basic health regulations cannot be squared with the sympathies and philosophy that befit a good judge. And yet so many judges who purport to be champions of the small and weak in the face of corporate greed have become ideologically blinded and willing to sacrifice their intellectual integrity on the altar of the Almighty Abortion on Demand.
As a country, we are better than this judicial tyranny that has been wrought upon the unborn. Or at least, we ought to be.