States in the Deep South are one of the dogged boundaries of the fight for women’s reproduction rights. The last abortion clinic in Mississippi, a cheerful bright pink building in the heart of the Jackson neighborhood of Fondren, has long been hanging in the balance. Until today, the clinic was on the precipice of being regulated out of existence thanks to what reproductive rights organizations call TRAP laws—targeted regulation of abortion providers. But judges from the U.S. Fifth Circuit of Appeals ruled today that the clinic could stay open. Why? Because closing it doesn’t reduce the need for its services—it simply shifts the responsibility to other states.
The law in question was one requiring that doctors at abortion clinics also get admitting privileges at local hospitals. In a state where most private hospitals are run by religious organizations, this was a request that the creators of the law knew to be extremely difficult, if not impossible. Two of the three doctors operating at the clinic were unable to get this access, and so the state attempted to shut them down. In court, the Jackson Women’s Health Organization argued that the regulation put an undue burden on the clinic. Mississippi officials argued that women seeking abortion could go to clinics in other states—Louisiana or Tennessee.
Of course, if you’re an actual woman trying to get this incredibly common procedure done, it is a huge burden to have to travel outside of the state. (Tennessee and Louisiana have their own abortion restrictions to contend with, too.) And the whole Not In My Backyard approach that Mississippi officials took backfired, at least where the Fifth Circuit of Appeals is concerned, because it simply shifted the responsibility on to other states. To wit:
Today, we follow the principle announced by the Supreme Court nearly
fifty years before the right to an abortion was found in the penumbras of the
Constitution and hold that Mississippi may not shift its obligation to respect
the established constitutional rights of its citizens to another state. Such a
proposal would not only place an undue burden on the exercise of the
constitutional right, but would also disregard a state’s obligation under the
principle of federalism—applicable to all fifty states—to accept the burden of
the non-delegable duty of protecting the established federal constitutional
rights of its own citizens
Why is this a big deal? Because it signals that the courts can throw a serious wrench in the larger anti-choice strategy, which is to squeeze abortion out on a state by state basis, establishing a different standard for constitutional rights in Mississippi than, say, New York. Places like Mississippi and Alabama can’t use the availability of abortion in Pennsylvania or New Jersey as rationale for effectively regulating legal access to the procedure out of their state.
Besides, you cannot regulate abortion out of existence, you can only force it back underground. Abortion restrictions—indeed restrictions to any kind of women’s healthcare, including things like contraception—inevitably have the greatest impact on poor women, who can’t afford to throw time and resources at overcoming the obstacles in the way of getting medical care. That’s as true in Brooklyn as it is in Mississippi.