There are pretty much continually new state efforts to limit abortion access in America. Even for someone who follows these issues professionally, it can induce a sort of abortion-restriction fatigue. Oh, another state wants to force abortion doctors to have hospital admitting privelges? Yawn. The upshot is that I've stopped seeing catastrophes in every proposed anti-abortion measure. The courts have a way of shutting these things down. The status quo remains.
Except maybe not. A cluster of southern states have been doubling down on the abortion restrictions with a flurry of simultaneous successes. The latest is Louisana: The state legislature yesterday passed a bill that could force three to four of the state's five abortion clinics to close, due to a new and medically uneccessary requirement that abortion doctors have admitting privilegess—permission to admit patients—at a nearby hospital.
Abortion clinics are similarly scarce in Louisiana neighbors Alabama, Mississippi, and Texas—thanks, too, to recent legislative efforts. Texas passed an admitting privileges bill in 2013, a move that required 14 of the state's 36 abortion clinics to close. A law passed recently in Mississippi would force the state's one remaining abortion clinic to close.
The Mississippi law is now under consideration by the U.S. Court of Appeals for the Fifth Circuit, which previously upheld Texas's law, finding it did not consitute an unconstitutional burden on abortion access because enough clinics remained open. At arguments in April, a lawyer for Mississippi argued that even if the state's sole abortion clinic closed, residents could always travel to neighboring states. Judge Stephen A. Higginson responded by pointing out that "Alabama has passed a law" which may close abortion clinics there and "Louisiana is considering one. So then what?"
Then what, indeed—how limited must abortion access become before it ceases to exist in any legally meaningful way? I guess that's what we're all going to find out soon.
Alabama's 2013 admitting-requirement law is also currently facing a federal trial, with opponents saying the law would force three of the state's five abortion clinics to close. Under the precedent set by Planned Parenthood v. Casey in 1992, women don't just have the right to an abortion until a fetus is viable outside the womb but also to do so absent regulations that place an "undue burden" on exercising that right.
"If all the clinics in a state have to close, I think a judge will have to call that an undue burden," Jessie Hill, a professor of constitutional law at Case Western Reserve University, told The New York Times. "Eventually the court will have to say, 'This is the limit.'"