NEW ORLEANS — For the second time this year, a federal appeals panel here heard arguments about the constitutionality of a new state law governing abortion. But despite much in common between the two laws — one in Texas, and the other, the subject of Monday’s hearing, in Mississippi — their effects would differ substantially, raising the possibility that the same court weighing similar laws might arrive at different conclusions.
The Mississippi law, like the Texas law, requires doctors performing abortions to have admitting privileges at local hospitals. Unlike the one in Texas, however, the law in Mississippi would have the effect of shutting down the state’s sole abortion clinic.
Since the Mississippi law was passed in 2012, the two doctors who perform the vast majority of the abortions at the clinic, the Jackson Women’s Health Organization, were unable to obtain local admitting privileges at any of the hospitals in the area.
The clinic’s license was due to be revoked last April, but at the last minute a federal judge blocked the law. The state took the case to the 5th U.S. Circuit Court of Appeals.
In March, as the Mississippi case was waiting to be heard, a three-judge panel of the 5th Circuit upheld the Texas law. Though some clinics in Texas might close under the new regulations, the judges ruled, others would remain open and available.
“An increase of travel of less than 150 miles for some women is not an undue burden,” Judge Edith H. Jones wrote.
But the victory for Texas did not guarantee an easy time Monday for Paul E. Barnes of the Mississippi attorney general’s office.
“Seems to me you’ve got a steep hill to climb,” Judge E. Grady Jolly said at the outset.
Barnes argued that Mississippi is “surrounded by major metropolitan areas where abortion clinics are available,” and that women seeking abortions could always go to clinics in Alabama or Louisiana.
But judges on the panel pointed out that the crossing of state lines involved larger matters than distance.
“The state of Mississippi cannot shift its constitutional obligations onto other states,” Jolly said.
He also pointed out that Alabama has passed, and Louisiana is considering, similar laws that could result in the shuttering of clinics, thus hurting the state’s argument about access.
Returning to a main contention of the state — that the law was devised to ensure the health of women, not to prohibit abortion — Barnes said “each state has the same right to protect its citizens,” and what was allowed in Texas should be allowed in Mississippi, too.
While the Texas ruling may have seemed to bode poorly for her case, Julie Rikelman, a lawyer with the Center for Reproductive Rights, was met with fewer skeptical questions by the panel. She even cited a passage from the Texas ruling in her argument: that the challenge there would have succeeded, “if the effect of the law substantially burdened women’s access to abortions in Texas.”