On Friday, several abortion providers sued the state of Louisiana over new laws governing doctors who choose to perform the procedure.
Louisiana’s new law, signed by Governor Bobby Jindal in June, requires that doctors who perform abortions have active admitting privileges at a hospital that is located not further than thirty miles from the location at which the abortion is performed or induced and that provides obstetrical or gynecological health care services.
Abortion providers are suing because they argue that the provisions in the statute may cause every clinic in the state to close. Bloomberg reports:
The Louisiana legislation, signed by Republican Governor Bobby Jindal in June, doesn’t allow enough time for compliance, the clinics argued in court papers. Hospitals typically need three to seven months to decide on a doctor’s application, they said. They were allowed only 81 days to comply with the law.“It is not at all clear that any doctor currently providing abortions at a clinic in Louisiana will be able to continue providing those services, thereby eliminating access to legal abortion in Louisiana” if the law takes effect as scheduled, attorneys for the clinics in Shreveport, Bossier City and Metairie wrote.
If this case ends up progressing through the court system, it will end up before the Fifth Circuit Court of Appeals. Although (as the article from Bloomberg points out) the government cannot “unduly” weigh down with regulations the right of a woman to seek an abortion (not “have an abortion,” as is commonly misstated by abortion advocates,) the Fifth Circuit has previously ruled that “that driving distance alone to get to a clinic never constitutes a substantial obstacle. No matter how far.”
The story doesn’t end there, however. A similar law in Texas has also come under fire in recent weeks over provisions governing abortion providers’ facilities and admitting privileges, as are new laws in Mississippi. In Mississippi, however, the Fifth Circuit has ruled that Mississippi can’t be allowed to “shift its burden” to neighboring states:
“A state cannot lean on its sovereign neighbors to provide protection of its citizens’ federal constitutional rights,” Judge E. Grady Jolly wrote.”Pre-viability, a woman has the constitutional right to end her pregnancy by abortion,” he continued. This law “effectively extinguishes that right within Mississippi’s borders.”Mississippi officials had argued that women seeking abortions could always drive to neighboring states, such as Louisiana or Tennessee, to obtain the procedure, an argument the panel rejected.The decision did not overturn the Mississippi law or explore whether the admitting-privilege requirement was justified on safety grounds. Rather, the panel said, the law could not be used to close the sole clinic in the state. The opinion preserved an existing stay while the substantive issues were considered further by a Federal District Court. But it set a clear principle of state responsibility that the lower court must apply to this case.
If providers’ attorneys can prove that all clinics in Louisiana will be forced to close as a result of the new privilege laws, it’s likely that eventually the Fifth Circuit will go the route it did in Mississippi, and block the law from taking effect on September 1.
Could the question of whether or not a state is required to allow access to abortion within its borders be heading for the Supreme Court? Only time will tell.
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