E. GRADY JOLLY, Circuit Judge:
Given that the Supreme Court long ago determined that the Constitution protects a woman's right to choose an abortion, the ultimate issue in this appeal is whether the State of Mississippi can impose a regulation that effectively will close its only abortion clinic. The State of Mississippi, however, argues that Mississippi citizens can obtain an abortion in Tennessee, Louisiana, or Alabama without imposing an undue burden upon Mississippi citizens in the exercise of their constitutional rights.
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.
The Jackson Women's Health Organization ("JWHO") operates the only licensed abortion clinic in Mississippi ("the Clinic"). Three doctors are affiliated with the Clinic: Dr. Willie Parker, Dr. Doe, and Dr. Roe.
The defendants, Mary Currier and Robert Smith (collectively, "the State"), are Mississippi officials. They appeal the district court's entry of a preliminary injunction enjoining the enforcement of the admitting privileges provision of H.B. 1390. We AFFIRM the district court's judgment entering the preliminary injunction, as herein MODIFIED to limit it, in this "unconstitutional as applied" appeal, to these parties and this case.
Several days before H.B. 1390's effective date, JWHO filed this suit in the federal district court. JWHO sought both a temporary restraining order and a preliminary injunction barring the enforcement of the admitting-privileges provision.
Consistent with the district court's order, Drs. Parker and Doe sought admitting privileges at seven of the Jackson-area hospitals, but no hospital was willing to grant either of the doctors these privileges.
In the light of this impending hearing, JWHO filed a second motion for a preliminary injunction. JWHO argued that, by closing the only clinic in Mississippi, the law would impose an undue burden on women's right to choose abortions. The State responded that the law would not impose an undue burden because the Act would, at most, increase travel time and costs for women seeking an abortion. These women could travel to abortion clinics in other states that are not prohibitively far away. Taking the Jackson area as an example, the State pointed to abortion clinics in Baton Rouge, New Orleans, and Memphis that are no farther than three hours away. Because this increase in travel would only be an incidental burden on the right to an abortion, the State argued that H.B. 1390 was constitutional.
The district court granted the preliminary injunction. As a factual matter, the district court found that allowing enforcement of the Act would close the Clinic because JWHO could not comply with the Act. Moving to the legal analysis, the district court held that JWHO had demonstrated a substantial likelihood of success on the merits because the Act created an undue burden. Notwithstanding the other clinics that are within a few hours' drive, the district court held that the proper analysis looked to the availability of abortions within the State of Mississippi. Seeing that the only clinic would be closed by enforcing the Act, the district court held that an undue burden would likely result.
Similarly, the district court held that JWHO had established a substantial threat of irreparable harm in the form of the impending closure of the Clinic. Finally, the district court held that the balance of harms cut in favor of JWHO as the preliminary injunction would merely maintain the status quo, and the court held that the injunction would not disserve the public interest because it would prevent constitutional deprivations. Having found the four factors of the preliminary injunction test satisfied, the district court enjoined the State from enforcing the admitting privileges provision.
The State then filed a Rule 52(b) motion to clarify. First, the State asked the district court to clarify whether its legal conclusion was that any regulation that would act to close the Clinic would be "per se unconstitutional." The district court only addressed this argument insofar that it reiterated that the challenge was to the Act as-applied, and therefore was based on the facts before the court. Second, the State asked the district court to clarify a footnote in the original order which highlighted a lack of clarity in abortion jurisprudence related to the necessity of a challenged regulation. In its Rule 52(b) order, the district court reiterated that it did not undertake any necessity inquiry as it was not something raised by the parties, and that even if it did undertake a necessity inquiry, the Act would not be so medically necessary as to overcome the undue burden it established.
The State now appeals the granting of the preliminary injunction and the district court's motion granting the State's Rule 52(b) motion in part.
We review a district court's grant of a preliminary injunction for an abuse of discretion. Janvey v. Alguire, 647 F.3d 585, 591-92 (5th Cir.2011). "Although the district court may employ informal procedures and rely on generally inadmissible evidence, the record must nevertheless support the district court's decision." Sierra Club, Lone Star Chapter v. F.D.I.C., 992 F.2d 545, 551 (5th Cir. 1993). In examining
To support the "extraordinary equitable remedy" of a preliminary injunction, the plaintiff must establish four elements: "(1) a substantial likelihood of success on the merits; (2) a substantial threat that the movant will suffer irreparable injury if the injunction is denied; (3) that the threatened injury outweighs any damage that the injunction might cause the defendant; and (4) that the injunction will not disserve the public interest." Hoover v. Morales, 164 F.3d 221, 224 (5th Cir.1998).
The State argues principally that the district court erred in holding that JWHO had established a substantial likelihood of success on the merits. In this respect, the State questions one finding of fact and two conclusions of law of the district court's order. We begin by touching on the factual issue before moving to the legal arguments.
The district court found that the effect of the law would be to close the Clinic — the only licensed clinic in Mississippi. The State now contends that the district court erred because this fact is disputed, arguing that implementation of the law would not force the Clinic to close.
But we need not tarry long here because the State has waived this argument. All indications from the record are that this issue ultimately was not contested in the district court. See Pluet v. Frasier, 355 F.3d 381, 385 (5th Cir.2004) ("We will not disturb the district court's judgment based upon an argument presented for the first time on appeal."). The State did not present this argument in its response motion in opposition to JWHO's motion for preliminary injunction, and the district court noted that "the State has essentially confirmed that it will revoke the Clinic's license." Additionally, this argument is nowhere to be found in the State's opening brief; it is only in its reply brief that the State "disputes that it is a `foregone conclusion' that enforcement of the admitting privileges requirement will close the Clinic." See Edwards v. Johnson, 209 F.3d 772, 775 n. 1 (5th Cir.2000) ("[Plaintiff] does not argue in his initial brief on appeal that the district court erred in adopting the magistrate's finding.... Therefore, any challenge to these findings has been abandoned on appeal."). Moreover, in its opening brief, the State admits that "if enforced, the admitting privileges requirement would likely require JWHO, the only currently licensed abortion facility in Mississippi, to lose its license." The State's attempt to walk back this statement in the reply brief is too little, too late.
We now take up the State's legal arguments that JWHO failed to demonstrate a substantial likelihood of success on the merits of its case. It is important to note at the outset that JWHO does not seek to have the Act declared unconstitutional for all intents and purposes; JWHO brings only an as-applied challenge to the Act. Consequently, to establish a substantial likelihood of success on the merits, JWHO must demonstrate that H.B. 1390, as applied against JWHO in this case on these facts, likely violates the Constitution.
It is also important to keep in mind that for more than forty years, it has been settled constitutional law that the Fourteenth Amendment protects a woman's basic right to choose an abortion. Roe v. Wade, 410 U.S. 113, 153, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Beyond this basic premise, however, the controversy seems to have no end as this basic right comes with layers of limitations. Accordingly, a woman's right to an abortion can be regulated by a state consistent with that state's interest in protecting potential life and the health of the mother. Planned Parenthood of S.E. Penn. v. Casey, 505 U.S. 833, 846, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality opinion) (reaffirming the state's "legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child"). The Supreme Court has held, however, that such state regulations may not impose an "undue burden" on the basic right to terminate a pregnancy by abortion prior to the fetus's viability. Id. at 895, 112 S.Ct. 2791 ("[The challenged regulation] is an undue burden, and therefore invalid."); see also id. at 877, 112 S.Ct. 2791 ("[A] statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman's choice cannot be considered a permissible means of serving its legitimate ends."). A law fails this standard, and is thus unconstitutional, "if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Gonzales v. Carhart, 550 U.S. 124, 156, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007) (quoting Casey, 505 U.S. at 878, 112 S.Ct. 2791). Laws that merely have "the incidental effect of making it more difficult or more expensive to procure an abortion" do not impose an undue burden and are thus constitutional. Casey, 505 U.S. at 874, 112 S.Ct. 2791. In addition to creating no undue burden, an abortion restriction must pass a rational basis test. Gonzales, 550 U.S. at 158, 127 S.Ct. 1610 ("Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interest in regulating the medical profession in order to promote respect for life, including life of the unborn." (emphasis added)).
In addition to these Supreme Court precedents, we are guided by a recent opinion of our court determining the constitutionality of a similar Texas statute. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 748 F.3d 583 (5th Cir.2014). In Abbott, we discussed the constitutionality of a Texas law that, among other things, required that a physician performing an abortion have admitting privileges at a hospital located within thirty miles of the site of the abortion. Id. at 587. We held that this requirement satisfied rational basis review. Id. at 594-95. We additionally held that the law did not impose an undue burden on a woman's right to an abortion because "an increase of travel of less than 150 miles for some women is not an undue burden under Casey." Id. at 598.
In issuing the preliminary injunction, the district court saw the rational basis and no-undue-burden requirements as independent of each other, and both had to be satisfied in order for the Act to survive; that is, a regulation of the constitutional right must be struck if it fails to meet either test. Consequently, once the district court had held that the law created an undue burden on the exercise of the constitutional right, it became superfluous, the district court concluded, to engage in the rational basis inquiry. Conversely, the State argues that the rational basis inquiry is a necessary part of the total analysis, and it cannot be divorced from the undue burden analysis; this is especially true because the rational basis for the law will inform whether any burden on the right to an abortion is "undue." We hold that we do not need to decide this dispute because, assuming that a rational basis review is a necessary first step, our court in Abbott has addressed the rational basis of a virtually identical law, and we are bound by that precedent to accept that the Mississippi statute has a rational basis.
In Abbott, we recognized that in determining whether a law is rational, the scales are tipped in a state's favor. Id. at 594 ("[C]ourts must presume that the law in question is valid and sustain it so long as the law is rationally related to a legitimate state interest."). A law meets this standard if it is "based on rational speculation" even if that speculation is unsupported by evidence or empirical data. Id. We thus held that the Texas regulation satisfied a rational basis review because it was based on the rational speculation that it would "assist in preventing patient abandonment" by the doctor providing the abortion. Id. at 594-95. We see no basis for distinguishing the rational basis analysis of H.B. 1390. None of the rationales discussed in Abbott was state specific, and each would be equally applicable to H.B. 1390.
Accordingly, we hold that H.B. 1390 satisfies rational basis review based upon our binding precedent in Abbott. We now turn to the thornier question: whether JWHO has demonstrated a substantial likelihood of proving that the law imposes an undue burden on the right to choose an abortion. Gonzales, 550 U.S. at 158, 127 S.Ct. 1610 (requiring that an abortion regulation satisfy rational basis review and not impose an undue burden).
A law imposes an undue burden on the right to an abortion when the law "has the purpose or effect of creating a `substantial obstacle' to a woman's choice." Abbott,
Assuming that the Clinic will close, the State argues that this result still would not create an undue burden. The State argues that, at most, an incidental burden will be created as Mississippi women will only be required to travel a further distance to reach an abortion clinic. The State points to clinics in cities in neighboring states such as Baton Rouge, New Orleans, and Memphis. Relying on these neighboring clinics, the State argues that Abbott demands reversal in this case because of the nearby clinics, albeit in other states.
JWHO does not argue that the distances involved alone impose an undue burden. Nor could it in the light of Abbott. See id. at 598 ("We therefore conclude that Casey counsels against striking down a statute solely because women may have to travel long distances to obtain abortions."). We thus accept that, if these out-of-state clinics are properly considered in the undue burden analysis, the Act may well be upheld. This question is a central issue upon which the parties disagree: In analyzing whether the Act imposes an undue burden, should the analysis focus only on the availability of abortions in Mississippi, or should it also take into account nearby clinics in neighboring states. We turn now to this dispute.
The district court held that because H.B. 1390 would close the only abortion clinic in Mississippi, women in Mississippi would be forced to travel to a neighboring state for an abortion, which, according to the district court, creates an undue burden notwithstanding that the physical distances may not be unduly burdensome. The district court reasoned that accepting the State's argument would result in "a patchwork system where constitutional rights are available in some states but not in others." The district court also found support in a prior case decided in the same district court — Jackson Women's Health Org., Inc. v. Amy, 330 F.Supp.2d 820 (S.D.Miss.2004) — and a vacated Fifth Circuit decision — Okpalobi v. Foster, 190 F.3d 337 (5th Cir.1999), superseded on reh'g en banc on other grounds, 244 F.3d 405 (5th Cir.2001). The district court held that these two decisions, combined with the practical considerations, demonstrated that closing the only abortion clinic in Mississippi would impose an undue burden on the constitutional right.
The State attacks the district court's conclusion by pointing out that there is no reason that traveling a given distance is made more burdensome by simply crossing a state line during the trip. Crossing a state line, it argues, does not increase the time or money required for a trip of a given length. Thus, for the State, reasonable travel distances to other states' facilities should end further discussion.
JWHO supports the district court's conclusion that state lines do matter by pointing out that courts do not look to the
Similarly, in Jane L. v. Bangerter, the Tenth Circuit considered the constitutionality of a Utah law that significantly restricted abortions after twenty weeks gestation. 102 F.3d 1112, 1114 (10th Cir. 1996), cert denied, 520 U.S. 1274, 117 S.Ct. 2453, 138 L.Ed.2d 211 (1997). The district court in the case held that the restriction did not impose an undue burden on a woman's right to choose an abortion because the record did not contain evidence that any woman had wanted or attempted to obtain an abortion after twenty weeks gestation. Id. at 1117. Reversing the district court, the Tenth Circuit cited a declaration by the director of a Utah abortion clinic stating that in "the Clinic routinely refers to another state those Utah residents needing an abortion after twenty weeks," and that in 1990 "the Clinic referred out of state ten to fifteen women who needed such abortions." Id. In view of this fact, the court did not engage in any further analysis of the travel time and costs to women who were required to travel to those out of state clinics. Id. Instead, the panel moved directly to conclude that "a group of women exists in Utah for whom [the statute] actually operates as an impermissible ban on the right to abort a nonviable fetus." Id. at 1117-18. The panel found dispositive that women were forced to leave the state to exercise their constitutional right.
Jane L. stands out as the clearest example of an appeals court focusing its analysis on a regulation's effect within the regulating state. We also note, however, that other courts, in striking down abortion regulations, have failed to consider the availability of abortions in neighboring states. See, e.g., Women's Med. Prof'l Corp. v. Voinovich, 130 F.3d 187, 200-10 (6th Cir.1997) (invalidating Ohio abortion regulations because they imposed an undue burden on the right to an abortion without discussion of availability in neighboring states).
JWHO's position finds additional support in State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208 (1938). In Gaines, the University of Missouri's law school denied Gaines admission because he was African-American. Id. at 342, 59 S.Ct. 232. In denying admission to its law school, the state advised Gaines that he could take advantage of Missouri's statutory scheme through which the University of Missouri board of curators would provide him, as an African-American Missouri resident, a tuition stipend for use at a law school in an adjacent state. Id. at 342-43, 59 S.Ct. 232. Gaines rejected this offer and sought a writ of mandamus to compel the University of Missouri to grant him admission, which the Missouri Supreme Court denied. Id. at 342, 59 S.Ct. 232.
The Supreme Court of the United States reversed, holding that Missouri's tuition stipend program could not relieve the State of Missouri of its obligations to its citizens under the Fourteenth Amendment. In a passage worth quoting at length, the Court reasoned that:
Id. at 350, 59 S.Ct. 232.
To be sure, there are distinctions between Gaines and the instant case, which the State points out. First, Gaines was an Equal Protection case, which addresses the discriminatory distribution of a service provided by the state government; and second, Gaines has never been cited in the abortion context. In contrast, this appeal addresses rights arising under the Due Process Clause, in which the state government is not providing any service. The State is only regulating a privately provided service that is protected by the United States Constitution.
Although cognizant of these serious distinctions, and although decided in a different context, we think the principle of Gaines resolves this appeal. Gaines simply and plainly holds that a state cannot lean on its sovereign neighbors to provide protection of its citizens' federal constitutional rights, a principle that obviously has trenchant relevance here. Pre-viability, a woman has the constitutional right to end her pregnancy by abortion. H.B. 1390 effectively extinguishes that right within Mississippi's borders. Gaines locks the gate for Mississippi to escape to another state's protective umbrella and thus requires us to conduct the undue burden inquiry by looking only at the ability of Mississippi women to exercise their right within Mississippi's borders. There is no hiding the relevant language in Gaines: "[N]o State can be excused from performance by what another state may do or fail to do." Id.
Consistent with Gaines, we hold that the proper formulation of the undue burden analysis focuses solely on the effects within the regulating state — here, Mississippi. Under this formulation,
Having reached this conclusion, we close with two observations. First, the State argues that our analysis bars the State from enforcing any regulation against JWHO that would close the Clinic simply because it is the only clinic in Mississippi. For instance, the State argues that our opinion would preclude the State from closing the Clinic for sanitation violations because, like H.B. 1390, such action would impose an undue burden on the right to an abortion by closing the only clinic in Mississippi.
Nothing in this opinion should be read to hold that any law or regulation that has the effect of closing all abortion clinics in a state would inevitably fail the undue burden analysis. Whether the State's hypothetical sanitation regulation would impose an undue burden is not a question before this court, and is not a question that can be answered without reference to the factual context in which the regulation arose and operates. Here, we hold only that JWHO has demonstrated a substantial likelihood of proving that H.B. 1390, on this record and as applied to the plaintiffs in this case, imposes an undue burden on a woman's right to choose an abortion. In reaching this determination, we look to the entire record and factual context in which the law operates, including, but not limited to, the statutory provision in question, the Clinic's status as the sole abortion clinic in Mississippi, the ability of the Clinic to comply with H.B. 1390, Dr. Parker's and Dr. Doe's efforts to obtain admitting privileges, the reasons cited by the hospitals for denying admitting privileges to Dr. Parker and Dr. Doe, the absence of a Mississippi law prohibiting hospitals from discriminating against physicians who perform abortions when granting admitting privileges, and the nature and process of the admitting-privileges determination. See Casey, 505 U.S. at 887-95, 112 S.Ct. 2791 (looking to factual context in striking down Pennsylvania's spousal notification provision).
Finally, this case is an as-applied challenge to H.B. 1390. The district court's judgment granting the preliminary injunction enjoined "any and all forms of enforcement of the Admitting Privileges Requirement of the Act during the pendency of this litigation." To the extent that this language extends the preliminary injunction to actions by the State against parties other than JWHO and the other plaintiffs, it was an overly broad remedy in an as-applied challenge. We modify the preliminary injunction to enjoin the State from enforcing the admitting privileges provision of H.B. 1390 against the plaintiffs in this case.
In this opinion we hold that, assuming a rational basis inquiry is a necessary first step in deciding the constitutionality of an abortion regulation, H.B. 1390 satisfies rational basis review. We hold that Gaines instructs us to consider the effects of H.B.
AFFIRMED as modified.
EMILIO M. GARZA, Circuit Judge, dissenting:
The majority holds that the mere act of crossing a state border imposes an "undue burden" on a woman's right to choose to obtain abortion services. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 878, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). Because the undue burden test requires an assessment of the difficulty of obtaining abortion services, whether in a woman's own state or a neighboring state, and because neither the district court nor the majority has undertaken this assessment, I respectfully dissent.
The majority claims that "the district court found that the effect of the law would be to close the Clinic" operated by the Jackson Women's Health Organization ("JWHO"). Ante at 452 (emphasis added).
The direct, legal effect of House Bill 1390 ("H.B. 1390" or "the Act") is only to mandate that "[a]ll physicians associated with [an] abortion facility must have admitting privileges at a local hospital...." Miss.Code Ann. § 41-75-1(f). Mississippi had previously required all doctors affiliated with outpatient ambulatory surgical facilities to have admitting privileges at a local hospital, but expressly exempted Level I abortion facilities, which are authorized to perform abortions after the first trimester. See Miss. Admin. Code 15-16-1:42.9.7 (2011). H.B. 1390 eliminated this exemption.
The independent decisions of private hospitals have no place in our review of state action under the Constitution. Cf. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) (articulating state-action requirement for § 1983 suits).
Regardless of the propriety or the legality of the hospitals' actions, what matters for this substantive due process analysis is that JWHO has not shown that the Clinic's closure would result directly from H.B. 1390, as opposed to the independent decisions of local hospitals — non-state actors. Because JWHO failed to demonstrate that the Act could have "the effect of placing a substantial obstacle in the path of a woman's choice" to obtain abortion services, Casey, 505 U.S. at 877, 112 S.Ct. 2791 (emphasis added), it has not shown a substantial likelihood that it will prevail on the merits.
Even assuming that H.B. 1390 itself would cause the Clinic to close, I would still disagree with the majority's holding. The majority, following the lower court, holds that "the proper formulation of the undue burden analysis focuses solely on the [challenged law's] effects within the regulating state." Ante at 457. Accordingly, the majority concludes that H.B. 1390, which "effectively clos[es] the one abortion clinic in the state," would impose an undue burden because Mississippi women would need to travel to a neighboring state to obtain abortion services. Id. Put differently, in the majority's view, to require a woman to cross a state border in order to obtain abortion services would unduly burden her right to choose an abortion. I disagree.
Two errors infect the majority's analysis — an impermissible reliance on silence and a misunderstanding of the holding of State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208 (1938). In the majority's view, the Casey Court's failure to "mention or consider the potential availability of abortions... in surrounding states" implies that we must confine our undue burden analysis to Mississippi. Ante at 456.
Of course, we do not write on a blank slate. Casey teaches that a state may regulate abortion to further its interests in protecting the health and safety of women, though "[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right." Casey, 505 U.S. at 878, 112 S.Ct. 2791. Moreover, "[t]he fact that a law which serves a valid purpose ... has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it." Id. at 874, 112 S.Ct. 2791. Applying Casey, a panel of this Court recently concluded that "an increase of travel of less than 150 miles for some women is not an undue burden...." Abbott, 748 F.3d at 598. The majority gives these binding principles a passing nod, ante at 453-54, before setting them aside for the sole reason that this case happens to involve the crossing of state borders to obtain abortion services, id. at 455 n. 6.
The majority's second, and more grievous, error is its reliance on the wholly inapposite case of Gaines. In that equal protection case, Gaines was refused admission to the University of Missouri's law school because he was African-American. Gaines, 305 U.S. at 343, 59 S.Ct. 232. Missouri's statutory scheme would have provided Gaines a stipend to attend law school in a neighboring state. Rather than apply for the stipend, Gaines filed a petition for a writ of mandamus to compel the University to admit him, on the grounds that his rejection was "a denial by the State of the equal protection of the laws in violation of the Fourteenth Amendment...." Id. at 342, 59 S.Ct. 232. The state court denied his petition, and the Supreme Court of Missouri affirmed. Id. The Supreme Court of the United States reversed, holding that the Equal Protection Clause required Missouri, which had already established a law school, to "furnish [Gaines] within its borders facilities for legal education substantially equal to those which the State there afforded for persons of the white race...." Id. at 351, 59 S.Ct. 232.
That a state may not shift its equal protection duties to another state is "[m]anifestly" clear. Id. at 350, 59 S.Ct. 232. The text of the Equal Protection Clause requires that "[n]o state shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV (emphasis added). As the Gaines Court explained, the reason for this jurisdictional qualification is elementary:
Although the correctness of Gaines's equal protection holding is beyond question, it has no bearing on this case, which arises under the Due Process Clause. The majority concedes that "Gaines has never been cited in the abortion context." Ante at 457. Nonetheless, the majority proceeds to transpose Gaines's maxim that "[n]o State can be excused from performance by what another State may do or fail to do," Gaines, 305 U.S. at 350, 59 S.Ct. 232, into a broader principle that "a state cannot lean on its sovereign neighbors to provide protection of its citizens' federal constitutional rights," thereby concluding that "H.B. 1390 effectively extinguishes [the abortion] right within Mississippi's borders," ante at 457. The majority misreads Gaines. A state's obligation "to give the protection of equal laws" does not depend on "what another State may do or fail to do." Gaines, 305 U.S. at 350, 59 S.Ct. 232 (emphasis added). Gaines thus governs each state's obligations solely under the Equal Protection Clause, not under the Constitution at large, much less the substantive component of the Due Process Clause. See Ayers v. Thompson, 358 F.3d 356, 360 (5th Cir.2004) (applying Gaines's holding that "the Fourteenth Amendment guarantees to individuals the equal protection of the laws" (emphasis added)).
Additionally, the state's equal protection obligation is fundamentally different from its obligation under Casey. The majority concedes that in the abortion context, "the state government is not providing any [abortion] service," ante at 457, but fails to grasp the doctrinal consequence: The duty not to unduly burden the abortion right could never be "cast by one State upon another," Gaines, 305 U.S. at 350, 59 S.Ct. 232, because this duty does not require a state to take any action, but rather to refrain from taking unconstitutional actions. Under the Equal Protection Clause, a state must provide equal protection of the laws whenever and wherever it enforces or provides a service under its laws. In Gaines, Missouri had to provide equal protection of its laws to Gaines in Missouri, where it had elected to offer a law school education to white students. To require Gaines to attend law school in another state would indeed cause the equal protection duty to be "cast by one State upon another." Gaines, 305 U.S. at 350, 59 S.Ct. 232. By contrast, no state is obligated to provide or guarantee the provision of abortion services within its borders.
The majority's cited authorities do not resolve this case. Casey did not contemplate whether the availability of abortion in neighboring states affects the undue burden analysis. Similarly, Gaines stands for the uncontroversial principle that a state's duty to provide equal protection cannot be altered by the actions or inactions of a neighboring state. The majority sheds no light on a state's duties under the Due Process Clause, let alone its duty to refrain from unduly burdening the right to choose an abortion.
A correct analysis under the Due Process Clause requires us to apply Casey and Abbott and consider whether the difficulty of obtaining abortion services under the facts of this case constitutes an undue burden. On this record, JWHO has not shown a substantial likelihood that any such burden actually exists — that the Act results in more than an "incidental effect of making it more difficult or more expensive to procure an abortion." Casey, 505 U.S. at 874, 112 S.Ct. 2791. In 2011, prior to the Act's passage, nearly sixty percent of Mississippi women who obtained abortions already traveled to other states for those services.
The majority claims that requiring courts to examine abortion availability in other states would be "exceedingly difficult" as a practical matter. Ante at 456 n. 8. The majority cannot imagine how courts undertaking as-applied analyses could account for "the law, potential changes in the law, and locations of abortion clinics in neighboring states." Id. This concern is unfounded. Here, the parties are fully prepared and able to develop the record concerning the presence of abortion providers in neighboring states.
The majority also echoes the district court's fear of a "patchwork system where constitutional rights are available in some states but not in others." Ante at 455. The majority's belief that the mere closure of the Clinic would abrogate the State's obligation not to unduly burden abortion access again illustrates its misunderstanding of Gaines. See supra, Moreover, the majority has unwittingly instituted its own "patchwork system": If all undue burden analyses must stop at state borders, the existence of an undue burden will depend, in part, on a plaintiff's location relative to those boundaries. For instance, women in northern Mississippi who live a mere fifteen miles from the heart of Memphis, Tennessee, could never enjoin the closure of the clinic in that city, lest Mississippi be "excused from [its] performance." Gaines, 305 U.S. at 350, 59 S.Ct. 232. But women just across the border in Tennessee could do so, if they demonstrate that the closure would impose an undue burden. This result is logically and practically untenable — all the more so in regions where populations are denser and urban areas often straddle state borders. The majority's state-by-state undue burden analysis cannot be squared with the duty of all states to refrain from unduly burdening the right of "any person" to choose an abortion. See Casey, 505 U.S. at 846, 112 S.Ct. 2791 (quoting U.S. Const. amend. XIV).
Lastly, the sole act of crossing a state border cannot, standing alone, constitute an unconstitutional undue burden on the abortion right because the Constitution envisions free mobility of persons without regard to state borders.
By arbitrarily confining its undue burden analysis to Mississippi, the majority departs not only from the concept of a constitutional right to travel, but importantly from the text "any person" in the Due Process Clause. In assessing whether a state law unduly burdens the abortion right, courts must be able to consider the availability of abortion services in neighboring states. Accordingly, I cannot conclude, as the majority does, that our analysis must "focu[s] solely on the effects within the regulating state," ante at 457, or that JWHO has shown a substantial likelihood H.B. 1390 imposes an undue burden merely by causing women to travel to an adjacent state to obtain abortion services.
The majority concludes by denying that it establishes any per se rule. "Nothing in this opinion," the majority declares, "should be read to hold that any law or regulation that has the effect of closing all abortion clinics in a state would inevitably fail the undue burden analysis." Ante at 458. Attempting to narrow its holding to the specific facts of this case, the majority claims to base its holding on "the entire record and factual context in which the law operates," including "the statutory provision in question," "the ability of the Clinic to comply with H.B. 1390," "the reasons cited by the hospitals for denying admitting privileges," and the "nature and process of the admitting-privileges determination." Id. In so doing, the majority professes to leave open the possibility that some law, such as the "hypothetical sanitation regulation" discussed in the State's briefing, could cause the closure of all abortion providers within a state and yet still be constitutional. Id. at 457-58.
The majority's attempt to cabin its holding to the facts of this case betrays its awareness that crossing Mississippi's borders cannot be dispositive. Yet notwithstanding this attempt, today's opinion concludes in no uncertain terms: "Gaines instructs us to consider the effects of H.B. 1390 only within Mississippi in conducting an undue burden analysis." Id. at 458-59. The majority simply cannot have it both ways. So long as the undue burden analysis is confined by Mississippi's borders, the closure of that state's sole abortion provider must be an undue burden.
Even accepting that the majority's factors somehow narrow its holding, I find its ad hoc approach to be unworkable. The majority does not even attempt to explain how this case's "factual context," the "statutory provision" at issue, and the "nature and process" of the admitting-privileges requirement purportedly combine to make this burden "undue."
Lastly, certain factors by which the majority purports to narrow its approach undermine its holding as to the Act's rational basis. As already explained, I fully join in the majority's conclusion that H.B. 1390 has a rational basis. See supra Part A; ante Part IV.A. Yet the majority, by faulting the "statutory provision" and the "nature and process of the admitting-privileges determination," without any explanation, in essence mounts a back-door attack on the purpose of H.B. 1390. Ante at 458.
Despite the majority's attempt to narrow its reasoning, today's opinion can only be read to mean that a law or regulation causing all of a state's abortion providers to close, such that women must cross a state border to obtain abortion services, imposes an unconstitutional undue burden on the abortion right.
The majority reminds us that "the Supreme Court long ago determined that the Constitution protects a woman's right to choose an abortion...." Ante at 449. We are then reminded that "the right to an abortion was found in the penumbras of the Constitution...." Id. at 449. Proceeding further, and following the Supreme Court's direction, the majority relies on Casey for its "undue burden" test. Id. at 453.
In addition to announcing the undue burden standard, however, Casey also advanced a new interpretation of substantive due process by which the judiciary can now interpret the "full scope of the liberty guaranteed by the Due Process Clause." Casey, 505 U.S. at 848, 112 S.Ct. 2791 (quoting Poe v. Ullman, 367 U.S. 497, 543, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting)). In taking blockquotes from Justice Harlan's dissent in Poe v. Ullman to explain its new theory, see Casey, 505 U.S. at 848-50, 112 S.Ct. 2791, the
Poe, 367 U.S. at 542-43, 81 S.Ct. 1752 (Harlan, J., dissenting).
Consistent with its substantive due process theory, Casey gives full play to political preferences in its "undue burden" standard. By defining in circular fashion an "undue burden" as a "substantial obstacle," Casey, 505 U.S. at 878, 112 S.Ct. 2791, the Casey joint opinion's "verbal shell game ... conceal[s] raw judicial policy choices concerning what is `appropriate' abortion legislation," id. at 987, 112 S.Ct. 2791 (Scalia, J., concurring in the judgment in part and dissenting in part). At bottom, because Casey's "undue burden" is a standard-less standard, a "concept [that] has no principled or coherent legal basis," courts are left to their own devices. Id. Yet even under Casey, our judicial discretion is not totally unfettered. Here, the text of the Due Process Clause and the fundamental constitutional right to travel demonstrate that courts must not stop the undue burden analysis at state borders, without considering access to abortion services in neighboring states. But the fact that the majority disagrees, fabricates new rules from Casey's silence, and overextends Gaines — an equal protection case — evinces Casey's ultimate failure to explain when a burden is "undue." In the end, under Casey, the majority's maneuvers are not legal, but political.
By its jarring opinion, the majority has affirmed the district court's decision to enjoin enforcement of H.B. 1390, enacted by the Mississippi legislature — the people's elected representatives — to regulate physicians' services. That this injunction flows from the policy choices of judges, who must fill the vacuum that is now the Due Process Clause's "liberty" interest, is a profoundly troubling consequence of current constitutional jurisprudence under Casey.
Ultimately, I await a return to legal theory that recognizes principled limits.
Respectfully, I dissent.
Philip Hamburger, Law and Judicial Duty 620-21 (2008), accord Emilio M. Garza, Judicial Duty and the Future: Two Issues of Fundamental Law, 6 J.L. Phil. & Culture 147, 156 (2011).
