Less than an hour after Mississippi’s governor signed the nation’s strictest abortion ban into law, the state’s only abortion clinic asked the courts to block it, arguing that the new law is unconstitutional.
The law bans abortions at 15 weeks of pregnancy and took effect immediately after Gov. Phil Bryant signed it on Monday. No exceptions are provided for victims of rape or incest.
The Jackson Women’s Health Clinic filed its lawsuit within minutes, setting the stage for a constitutional challenge to the long-held rule that abortion cannot be outlawed before a fetus is viable outside the womb.
“All women deserve access to safe and legal abortion care, no matter their zip code. Yet Mississippi politicians have shown once again that they will stop at nothing to deny women this fundamental right, targeting the state’s last remaining clinic in defiance of the U.S. Supreme Court and decades of settled precedent,” said Nancy Northup, president and CEO of the Center for Reproductive Rights, which represents the Women’s Health Clinic.
“Politicians are not above the rule of law, and we are confident this dangerous bill will be struck down like every similar attempt before it,” Northup said.
Judge temporarily halts new abortion ban
Bryant said House Bill 1510, which was approved by the Legislature earlier this month, reduces the timeline on the state’s current 20-week ban without making other substantive changes. This makes the legal window for abortion in Mississippi five weeks shorter than anywhere else in the country.
“I was proud to sign House Bill 1510 this afternoon,” Bryant said in a post to his Facebook account Monday. “I am committed to making Mississippi the safest place in America for an unborn child, and this bill will help us achieve that goal.”
In the lawsuit, the Jackson Women’s Health Clinic and its doctor, Sacheen Carr Ellis, are suing State Health Officer Dr. Mary Currier, the Mississippi State Board of Medical Licensure and the board’s executive director, Kenneth Cleveland, all of whom are responsible for enforcing the law.
No other state has successfully banned abortions before 20 weeks gestation, generally considered the very earliest point of viability for a fetus. In previous Supreme Court cases, constitutionality has hinged on two things: whether the fetus is viable and whether restrictions on abortion before that point of viability place an “undue burden” on the woman seeking an abortion. Laws that the courts decide do place an undue burden have been overturned.
“The legal standard that the Supreme Court has said is that a woman has the right to end a pregnancy before viability. And this ban takes effect well over a month before the fetus is viable, and the Supreme Court has said repeatedly that you just can’t do that,” said Julie Rikelman, legal counsel for the Center for Reproductive Rights.
But Jameson Taylor, interim director of the Mississippi Center for Public Policy, the conservative think tank that authored the bill, says case law that relies on viability to determine whether abortion should be legal is dated, especially when a woman’s health is in question.
Citing Gonzales v. Carhart, a 2007 Supreme Court case that banned a specific type of abortion procedure, Taylor said that viability is not the “penultimate standard” it was decades ago. In that case, the court upheld a federal ban on the so-called “partial birth” abortion even before the fetus was viable because it said the plaintiffs hadn’t proven that the procedure was necessary for a woman’s health. That ban, however, was only on one type of procedure and not abortion itself.
“What’s important is that this regulation makes rational sense. That’s exactly what the courts will be looking at, to what extent does this protect the health of the mother and the life of the unborn child.” Taylor said. “There are a very small number of abortions after the first trimester, and in terms of that it’s a very slight burden.”
The bill makes exceptions to the 15-week ban if the life of the mother is in danger or the fetus has a life-threatening abnormality.
In his presentation of the bill in the Mississippi House of Representatives, Rep. Andy Gipson, R-Braxton, cited statistics from the Guttmacher Institute, a group that advocates for a woman’s right to have an abortion, arguing that serious health risks for the mother increase substantially when abortions are performed after 18 weeks. According to the institute, the risk increases from 0.3 deaths per 100,000 abortions performed before eight weeks to 6.7 deaths per 100,000 abortions performed after 18 weeks.
On Friday, nonprofit group the National Academy of Sciences released a report calling abortions performed with medicine or in a doctor’s office “safe and effective.”
Abortion rights advocates have argued an otherwise blanket ban on abortion access weeks before the point of viability does more to harm to women’s health than help it.
“If Gov. Bryant truly cared about the health and well-being of Mississippi women and families, he would be working to expand access to health care — not taking it away,” Felicia Brown-Williams, Mississippi state director for Planned Parenthood Southeast Advocates, said in a statement. “This law was written by politicians, not doctors. (House Bill) 1510 is just the latest in a series of attacks targeting women and access to safe, legal abortion.”
Attorney General Jim Hood has suggested the cost of defending the new legislation in court may not be worth it.
“We know that bans below 20 weeks have been struck down,” said Hood. “We expect an immediate and expensive legal challenge.”
But state officials who support the law have so far shrugged off the threat of a lawsuit and, in fact, seem eager to defend it in court.
“We are willing to bear the costs because you can’t put a value on human life,” said Speaker of the House Philip Gunn, R-Clinton, outside of the governor’s office Monday afternoon.
If the Mississippi law does go before the courts, it may not be alone. Late last month, a state representative in Louisiana introduced a bill that would ban abortions at 15 weeks.
“This 15-week abortion ban is not only a targeted attack on the women of Mississippi, it threatens women’s rights and access to health care across this entire country. A similar bill has already been introduced in Louisiana, and if HB 1510 passes, we can expect it to be a template for similar bans across the U.S.,” Brown-Williams said in a statement last week.
While the Mississippi and Louisiana bills contain different language, the net effect is to outlaw abortion at a woman’s 15th week of pregnancy.
There’s also evidence that conservative groups across the U.S. have an eye on Mississippi. The Mississippi Center for Public Policy’s Jameson Taylor said that the Arizona-based Alliance Defending Freedom vetted the bill’s language, as did other organizations. Bob Trent, a spokesperson for Alliance Defending Freedom said, “From time to time lawmakers ask ADF attorneys to review the constitutionality of proposed legislation. ADF supports states’ important and legitimate efforts to protect the health and safety of women and children.”
Alliance Defending Freedom also was a key player in defending Mississippi’s House Bill 1523, known as the Protecting Freedom of Conscience From Government Discrimination Act, two years ago.
House Bill 1510, known as the Gestational Age Act, passed easily through both houses of the Legislature this session largely along party lines. Sensing the bill’s momentum, Democrats didn’t so much try to derail the bill outright as soften its impact, unsuccessfully offering amendments that would have granted free child care and health care to women who couldn’t receive abortions. They also unsuccessfully pushed back against the lack of an exception for women who were raped or got pregnant through incest.
“(This bill) does nothing to help the mother who has the unwanted pregnancy. You’re not putting any money into social programs that will help her out,” said Rep. Adrienne Wooten, D-Jackson, during the House debate.
“What is this body going to do when these children get here? Is this body going to take this baby into their own house?” Wooten asked.
Although no other states have successfully banned abortion before 20 weeks, several have tried. Earlier this decade, both Arkansas and South Dakota passed “heartbeat bills,” outlawing abortion at 12 weeks and six weeks, respectively. Appeals courts overturned both, saying the Supreme Court has made clear that abortions are allowed until a fetus is viable — around 23 or 24 weeks. But some of those same judges also suggested the high court reconsider the concept of viability, given medical advances.
Sen. Joey Fillingane, R-Sumrall, who presented the bill to the Senate, agreed. While he acknowledged abortions have long been considered legal up to the point of fetal viability, he said he felt confident that medical technology was on its way to catching up with the law.
“Abortion is one of the areas where technology is really driving the debate. Of course religion is important and driving it, too. But I think technology has pushed the timeline further and further (up),” Fillingane said.
Terri Herring, an anti-abortion advocate who attended Monday’s bill signing, agreed.
“This is a bill whose time has come,” Herring said.
Herring said she has been lobbying for anti-abortion legislation at the Capitol since 1986, when the Legislature passed one of the first parental consent laws in the country. That bill, Herring said, was tied up for seven years before the courts upheld it. Mississippi also passed the nation’s first law mandating a 24-hour waiting period for abortions.
“There are lots of things Mississippi has done first with regards to abortion,” Herring said. “We’re not embarrassed to protect the voiceless.”
But more recent legislation has had a mixed reception in the courts. On Friday, a U.S. District Court Judge upheld part of a 2012 law that requires doctors who perform abortions to be board certified.
The Jackson Women’s Health Clinic took a different part of that law, which required freestanding abortion clinics to have a relationship with a local hospital, all the way to the U.S. Supreme Court. The courts struck down that part of the law in 2016.
Diane Derzis, the clinic’s owner, said that this 15-week ban, like the 2012 law before it, is what abortion-rights activists call a TRAP law, which stands for targeted regulations of an abortion provider. Derzis argues these laws are unconstitutional because they place undue economic burdens on lower-income women and their families.
“These TRAP laws have forced women to make two trips to Jackson to have a simple medical procedure done. They have to take off work, find gas money,” she said. “It’s a tough place if you’re poor, (you’re a) woman of color or family of color. It affects you.”