On Thursday, the U.S. Supreme Court will consider taking up Currier v. Jackson Women’s Health Organization, the case challenging a Mississippi law that mandates any doctor performing abortions in the state have admitting privileges at a local hospital or face criminal sanction. Last year, a deeply divided Roberts Court refused to intervene in the fight over the constitutionality of Texas’ admitting privileges requirements. This time, however, the effect of the restrictions would close the only abortion clinic in a state, thus forcing patients to travel elsewhere for care. That could be the difference that compels the Court to step in now.
Obviously, there’s a lot at stake should the justices take up the case. But like much of the law around abortion restrictions, the fight in Currier is about more than just the immediate impact of declaring this particular requirement constitutional or not. Thanks to the Fifth Circuit Court of Appeals, the case is also about anti-choice advocates making it more difficult to challenge abortion restrictions in the future.
Admitting privileges requirements are among the most popular—and devastating—anti-abortion restrictions to sweep conservative state legislatures in the national wave of copycat legislation designed to shutter clinics. Admitting privileges requirements are particularly insidious because the process by which hospitals grant them is often political and arbitrary. In states like Wisconsin and North Dakota, Catholic consolidation of health-care facilities exacerbates this problem because those institutions are even less likely to grant them, leaving abortion-rights advocates turning to the federal courts for relief. Fortunately for them, the federal courts have been mostly hostile to admitting privileges requirements, finding anti-choice lawmakers’ justifications for the restrictions to be flimsy and the impact on abortion access to be unacceptable.
That is, of course, with the notable exception of the conservative Fifth Circuit Court of Appeals. Last year, the court granted an emergency request by attorneys from the State of Texas to overturn the results of a four-day trial that found Texas’ admitting privileges requirement unconstitutional. In Planned Parenthood v. Abbott, the Fifth Circuit ordered the Texas law take effect immediately and then in a subsequent decision upheld its constitutionality. The result devastated abortion access in the state, especially in the low-income Rio Grande Valley, which saw it all but wiped out altogether.
Roe has collapsed and Texas is in chaos.
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But the fight over Texas’ admitting privileges didn’t just trigger a wave of clinic closures. It also set a new legal standard for judging anti-abortion restrictions, designed by the conservative Fifth Circuit to bait the Roberts Court to further restrict access to the procedure.
Typically when legal analysts discuss the constitutionality of an abortion restriction, we ask if the law unduly burdens abortion rights, not just because that’s the standard from Planned Parenthood v. Casey, but because after dozens of legal challenges post-Casey “undue burden” is also the short-hand in public discourse for talking about abortion restrictions. Naturally, there’s even more to it. When determining if an abortion restriction is an undue burden, courts must ask whether it has the purpose or effect of restricting abortion access. In other words, did lawmakers implement it for the express goal of restricting access, or is that a (perhaps unforeseen) consequence? As you might expect, the law is a mess there too—enough to make it the subject of its own piece.
But in reality, asking if an abortion restriction is an undue burden is only half the analysis. For an abortion restriction to be constitutional, it must also be rationally related to a legitimate state interest, such as advancing patient safety or promoting an interest in fetal life. An abortion restriction has to clear both the rational basis hurdle and the undue burden hurdle to be upheld by the courts.
When it comes to hospital admitting privileges, supporters have claimed the requirements support the legitimate state interest in promoting patient safety. Challengers, meanwhile, rightly point to the mountain of evidence from the medical community itself that says hospital admitting privileges do not promote patient safety and, in fact, can cause harm to patient health. In the trial over Texas’ admitting privileges law, the trial court ruled the state had failed to meet even this low constitutional threshold because it did not produce any evidence during the four days that a rational relationship existed between this requirement and improved patient care, nor did the state produce evidence that the requirement “address[ed] issues of patient abandonment, hospital costs or accountability.” Essentially, the trial court ruled that lawmakers can’t just say a policy is related to something like patient safety. They have to produce at least a modicum of evidence that it is.
That seems like a reasonable requirement for lawmakers who are legislating medical practices—be able to defend with science the claims embodied in their abortion restrictions. And it’s exactly the kind of requirement that has sunk targeted regulation of abortion providers (TRAP) laws in other jurisdictions like the Seventh Circuit Court of Appeals.
But it is not the requirement the Fifth Circuit decided, on its own, would apply within its jurisdiction. In its review of the Texas admitting privileges, it held that it was not the court’s job to second-guess the legislature when it came to their reasons for passing abortion restrictions. If lawmakers had a “rational speculation” that an anti-abortion restriction would promote patient care, that was enough, according to the court, to determine that the law in question promoted the state’s interest. So if a lawmaker pronounces an abortion restriction promotes patient health, that is good enough for the Fifth Circuit. Even more, challengers were prevented from presenting evidence to rebut this “rational speculation.” So if lawmakers swear their anti-abortion laws are designed to help women—no matter if they actually do—there’s nothing much pro-choice advocates can do to challenge that assertion in court.
Given that the Fifth Circuit ruled that courts must accept almost verbatim lawmakers’ assertions their anti-abortion restrictions are reasonable, and challengers are not allowed to present any evidence to combat those claims, then what about the “undue burden” prong of the analysis? Do pro-choice advocates get a similar pass from the court when it comes to claiming that a particular restriction would unduly burden abortion rights?
Of course not. When the Fifth Circuit ruled in the Texas cases that lawmakers have basically zero evidentiary burden in supporting their anti-abortion restrictions, it also ruled that abortion rights advocates must be able to produce tangible evidence that lawmakers passed the restriction with an improper purpose of unduly burdening abortion rights. It said that their claims that closing clinics would decimate reproductive health-care access and have the effect of unduly burdening abortion rights were too speculative and told advocates they needed to offer more proof before it would block the law. Because pro-choice advocates didn’t have lawmakers on the record as saying their true motivation in passing HB 2 was to punish pregnant people, and because the court didn’t see patients in need of care that turned away en masse or unable to locate it all together, the Fifth Circuit ruled advocates could not show the law failed the undue burden test.
That’s the backdrop going into Thursday as the Roberts Court considers whether or not there’s an undue burden on abortion rights if a state has no open abortion clinic. Unlike the Texas case, the Fifth Circuit in Currier reluctantly upheld the lower court’s decision to block Mississippi’s admitting privileges requirement, in part because lawmakers were on record as wanting to pass the legislation specifically to close the Jackson Women’s Health Organization, and in part because if the Mississippi law goes into effect then women have essentially no legal right to abortion in the state. So essentially the same law analyzed by the same federal appeals circuit but with a totally different outcome.
In their petition to the Roberts Court asking the Court to hear its case, attorneys for the State of Mississippi argue the Fifth Circuit not only contradicted itself in allowing the Texas law to take effect while blocking Mississippi’s, it did so because it mucked up the undue burden standard and now the Roberts Court has to fix it.
If the Roberts Court agrees to take Currier, then it will address the very important constitutional question of whether or not the fundamental right to abortion means anything in states intent on regulating it out of existence. And to come to an answer it will have to wrestle with this “we don’t need no stinking evidence” standard set out by the Fifth Circuit, which basically blocks the opportunity to rebut anti-choice lawmakers’ assertions on the safety or necessity of an abortion restriction—any abortion restriction—with medical-based evidence to the contrary.
Of course the Roberts Court could decline to take up Currier, in part because the Fifth Circuit’s decision affirms a preliminary order keeping the state’s last remaining clinic open while the suit challenging the law proceeds. The Court could decide that while the issues in Currier need to be addressed, the appropriate time to do so is after a trial and with a fuller record. That decision would delay, rather than decide, the issue of the constitutionality of admitting privileges requirements and keep in place the conflicting federal appeals court rulings on whether they are constitutional and what level of proof is required to challenge them. These are questions the Court is going to have to answer at some point, which is exactly what the Fifth Circuit’s decisions in both Abbott and Currier, with its conflicting outcome, were designed to prompt.
In the interim, conservative lawmakers in Texas, Mississippi, and Louisiana would continue to enjoy the cover of a Fifth Circuit decision that cuts off evidence contradicting lawmakers’ claims that anti-abortion restrictions are medically reasonable or that they help women. Who knows what kinds of restrictions lawmakers would come up with in response, but with anti-choice activists offering testimony that a fetus is capable of feeling pain as early as eight weeks’ gestation, we do know they will continue to have nothing to do with patient health or safety.
The Court could announce its decision whether to take up Currier as early as next week.