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NYT's Greenhouse explores state of abortion access if Roe v. Wade were overturned

Should Roe v. Wade be overturned by a Supreme Court under the new administration, "[t]here's no doubt that some states would avail themselves of the option of banning abortion," forcing women to cross state lines to access abortion care, columnist Linda Greenhouse writes in an opinion piece for the New York Times.

Greenhouse contrasts the situation with "a dark period of Supreme Court history, when 'separate but equal' was the law of the land." However, she notes that "even the Supreme Court of the 1930s, decades from questioning the prevailing racial ideology, was stopped short by a case from Missouri, State of Missouri ex rel. Gaines v. Canada."

Greenhouse explains that Lloyd Gaines was a black student denied entry to the University of Missouri's law school on the basis of his race, encouraged instead "to apply for the scholarship that a state law made available to black students forced to leave the state in order to pursue their educational goals." Gaines rejected the offer and challenged the decision, which was upheld by the Missouri Supreme Court before being struck down by the U.S. Supreme Court.

In the U.S. Supreme Court decision, Greenhouse writes, Chief Justice Charles Evans Hughes ruled that it was "'beside the point'" that Gaines could go to law school elsewhere, stating, "'The basic consideration is not as to what sort of opportunities other states provide, or whether they are as good as those in Missouri, but as to what opportunities Missouri itself furnishes to white students and denies to Negroes solely upon the ground of color.'" According to Greenhouse, Hughes added, that "each state was 'responsible for its own laws establishing the rights and duties of persons within its borders,' and that ' it is an obligation the burden of which cannot be cast by one state upon another, and no state can be excused from performance by what another state may do or fail to do.'"

Greenhouse writes that while the Gaines lawsuit is little known outside of Missouri, "it has been rediscovered in the recent litigation over state restrictions on abortion." According to Greenhouse, Myron Thompson, a federal district court judge in Alabama, cited the Gaines case in a ruling that struck down "the state's requirement [HB 57] that doctors who perform abortions have admitting privileges at local hospitals."

Greenhouse explains that because most hospitals in Alabama refused to extend admitting privileges to abortion providers, "the requirement would have closed three of the state's five abortion clinics." In the lawsuit, the state claimed women unable to access care in the state could travel out of state to do so, Greenhouse writes. However, she writes that Thompson, citing the Gaines case, ruled that the "'state could identify no precedent for a court to consider conduct outside the political boundaries of a jurisdiction in order to justify the constitutionality of actions by that jurisdiction.'"

Greenhouse also points to a decision by the 5th Circuit Court of Appeals striking down Mississippi's admitting privileges requirement (HB 1390), which would have shut down the state's sole abortion clinic. In that decision, the court also cited Gaines, ruling, "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. ... [Gaines] locks the gate for Mississippi to escape to another state's protective umbrella." According to Greenhouse, the U.S. Supreme Court in June refused to review the Mississippi decision.

Greenhouse notes that while women who have "time and money" will be able to access abortion care, "most women who get abortions today are low-income, defined as less than twice the federal poverty level, a trend that is accelerating as middle-class women avoid [unintended] pregnancy by availing themselves of reliable, long-lasting (and expensive) birth control methods." She concludes that should such a situation "becom[e] reality, for women, the border -- a virtual wall? -- will be internal, and those most in need will be most unable to cross it" (Greenhouse, New York Times, 11/24).