Health

The Supreme Court May Take Up A Case That Could Be A Game Changer On Abortion Access

CREDIT: AP Photo/Rogelio V. Solis

Clinic owner Diane Derzis stands outside the Jackson Women's Health Organization, Mississippi’'s only commercial abortion clinic

Looming questions about exactly how far states can go to restrict access to abortion services are inching closer to the Supreme Court, as the nation’s most powerful justices are currently deciding whether to take up a case regarding a Mississippi law that threatens to close the only abortion clinic in the entire state.

The law in question requires abortion doctors in Mississippi to obtain admitting privileges from local hospitals, a complicated bureaucratic arrangement that is difficult for physicians to comply with. The doctors who fly in from out of state to provide abortions at Mississippi’s only clinic have not been able to obtain privileges — which means that, if the law is allowed to take effect, the clinic will be forced to close.

“It’s a blatant attempt to end safe and legal abortion,” Tiseme Zegeye, a staff attorney for the Center for Reproductive Rights who is litigating the admitting privileges case in Mississippi, told ThinkProgress. “When the bill was introduced and passed, politicians in Mississippi openly admitted that the law was specifically designed to close the last clinic in the state.”

Admitting privileges grant doctors the right to admit patients to a particular hospital if they experience serious health complications after an abortion. Anti-abortion activists and lawmakers have construed doctors practicing without admitting privileges as proof that abortion services are grossly unsafe and unregulated.

Ironically, admitting privilege requirements set up doctors to fail because the truth about abortion is exactly the opposite: It’s already an incredibly safe medical procedure. Many hospitals won’t grant privileges unless doctors admit a certain number of patients to the hospital each year. Physicians who perform abortions typically cannot meet those thresholds, though, because major complications stemming from the procedure are extremely rare.

This legislative strategy — known as the “Targeted Regulation of Abortion Providers,” or TRAP — has been very successful on the state level. Admitting privilege requirements have swept the country over the past several years. According to a recent report from the Guttmacher Institute, this particular restriction currently has a huge impact on potential abortion patients. Nearly 60 percent of women of reproductive age now live in a state with a TRAP law in place.

The activists who support TRAP laws are very upfront about their intentions. “These incremental laws are part of a greater strategy to end abortion in our country,” Tanya Britton, a board member for Pro-Life Mississippi, told the New York Times last year in reference to her state’s admitting privilege law. “It’s part of it, and one day, our country will be abortion free.”

Zegeye and her colleagues are anticipating to hear the Supreme Court’s decision about whether to take up Mississippi’s law as early as Monday. They’re expecting the justices to decline to take the case.

Somewhat counter-intuitively, the tenuous access to abortion services in Mississippi — which is completely dependent on the sole clinic in Jackson — may save the state from a Supreme Court decision that would allow the admitting privilege law to take effect.

The majority of Supreme Court justices aren’t likely to side with a state law that completely eliminates access to legal abortion within a state’s border. While Roe v. Wade still stands, Mississippi is obligated to provide a way for its residents to exercise their reproductive rights. So far, the lower court rulings blocking Mississippi’s admitting privilege law have used that very argument, pointing out it’s not sufficient to assume that women in the state can simply travel across the border to Tennessee, Alabama, or Louisiana to legally end a pregnancy.

“Mississippi cannot extinguish the right to abortion within its borders,” Zegeye said. “It’s an essential principle of federalism, that a state can’t lean on its neighboring states to uphold a constitutional obligation. There’s no circuit split… Both the Supreme Court and federal courts of appeals have ruled numerous times that a state can’t deny someone their constitutional right just because they can go to another state to exercise that right.”

If the Court does decline to take up Mississippi’s law this time around, legal experts agree that the justices will still be poised to weigh in on the broader issue of admitting privileges sometime soon.

The case in Mississippi, which has wound its way through the U.S. Court of Appeals for the Fifth Circuit and was appealed to the Supreme Court this spring, isn’t the only way that admitting privileges could land before the justices. There are similar legal challenges against TRAP laws in states like Texas, Louisiana, Oklahoma, and Wisconsin. Last year, the Court prevented Texas’ TRAP law from taking effect while litigation against the law proceeds, but did not weigh in on the merits of the law.

But the dissenting opinion in last year’s decision blocking Texas’ TRAP law suggested that four justices on the Court, at least, are ready to examine the constitutionality of this particular policy. And if it’s a different state law that winds up in front of the Court, an argument rooted in federalism won’t necessarily apply.

Compared to the other admitting privilege cases moving through the Fifth Circuit, Mississippi’s is the only one that threatens to — as Zegeye puts it — “extinguish the right to abortion within its borders.” In Texas and Louisiana, there are at least a few clinics that will probably be able to hang on, even if a TRAP law goes into effect and shutters the majority of abortion providers there. That could make it much harder to argue it’s unconstitutional for those states to enforce admitting privilege requirements.

Of course, the Center for Reproductive Rights argues that a state doesn’t need to shut down every single one of its abortion clinics in order to violate its residents’ constitutional right to legal abortion. TRAP laws have forced a record number of clinics to close over the past several years, forcing women to travel increasingly long distances to end a pregnancy — and putting the procedure completely out of reach for the impoverished women who don’t have the time or resources to make that trip.

“Even in the states where the admitting privilege laws will not close all the clinics in the state, they will still shutter clinics, leaving women without access in certain parts of the state,” Zegeye said, referring to admitting privileges as “sham laws” that harm women’s health. “We’re confident the Supreme Court will see what’s behind these laws and rule that they’re unconstitutional.”

But that’s a more nuanced point about the landscape of abortion access — and requires justices to consider not just the sheer number of legal abortion providers left in Texas, but whether the low-income immigrant women living in border communities actually have a meaningful ability to exercise their abortion rights within the confines of dozens of increasingly stringent state laws. For the conservatives on the Roberts Court, who have shown themselves to be no friends to reproductive rights, it may be a harder sell.

Typically, the best thing the Supremes can do to protect abortion access is to refuse to get involved at all. This time around in Mississippi, that’s certainly what Zegeye and her colleagues are hoping for. But as TRAP laws sweep the South and flood the courts, it’s going to become harder and harder for the justices to stay out of the issue altogether.