Just 18 hours after Gov. Phil Bryant signed the nation’s toughest abortion ban into law, a federal judge has issued a temporary restraining order, saying the law is likely to be found unconstitutional.
Within an hour of the signing on Monday afternoon, the Jackson Women’s Health Clinic sued the state over its ban, which prohibits abortions at the 15th week of pregnancy. The clinic, which is Mississippi’s only abortion provider, had argued that banning abortions so early violates a woman’s constitutional right to have an abortion before the fetus is viable.
That evening, the plaintiffs asked for a temporary restraining order, saying that a woman currently in her 15th week of pregnancy had been scheduled for an abortion at 2 p.m. Tuesday. On Tuesday morning, U.S. District Court Judge Carlton Reeves agreed with the plaintiffs, issuing a temporary restraining order on the law for 10 days.
“The law threatens immediate, irreparable harm to Mississippians’ abilities to control their ‘destiny and … body.’ This is especially true for one woman scheduled to have a 15-week abortion this afternoon. A brief delay in enforcing a law of dubious constitutionality does not outweigh that harm, and in fact serves the public’s interest in preserving the freedom guaranteed by the United States Constitution,” Reeves said in his order.
In 10 days, the court will decide whether to enter a preliminary injunction on the law, which would bar it from taking effect until the court has determined its constitutionality.
The governor has been a vocal advocate of restricting abortion since taking office in 2012, and he called Reeves’s decision “disappointing.”
“House Bill 1510 protects maternal health and will further our efforts to make Mississippi the safest place in America for an unborn child. We are confident in its constitutionality and look forward to vigorously defending it,” Bryant said in a email Tuesday afternoon.
Shortly before the hearing on Tuesday he had tweeted, “I pray today that we have saved the first life of an unborn child in Mississippi.”
The Jackson Women’s Health Clinic performs abortions until the 16th week of pregnancy. This week, it performed those procedures only on Monday and Tuesday. As a result, the clinic had argued that delaying the procedure even by one week means the woman with the 2 p.m. appointment would be unable to have an abortion in Mississippi, violating her constitutional rights.
“Irreparable harm exists not only this afternoon but in the coming weeks for women in this state,” said Rob McDuff, an attorney for the plaintiffs.
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.
Although Tuesday’s hearing was only on the motion for a temporary restraining order, it offered a preview of what is likely to be a long constitutional battle, as supporters of the 15-week ban try to chip away at the idea that a viable fetus is the only thing that outweighs a woman’s right to an abortion.
In his arguments for the state, Paul Barnes, special assistant attorney general, suggested that, thanks to advances in medical technology, fetal viability may now be earlier than the established court precedent of 23 weeks, an echo of arguments some legislators made earlier this month.
“We are confident we will be able to develop proof that at least some fetuses protected by this law are viable,” Barnes said.
Because old state law prohibited abortions at 20 weeks, only pregnancies up to that point are affected by the new law. No fetus has survived outside the womb before 20 weeks.
But Barnes also suggested that viability is a “constantly moving line,” arguing that while a fetus at 15 weeks may not be technically viable, the increased likelihood of fetal viability should be taken into account.
Reeves pointed out that judicial precedent draws a hard line at actual viability.
“Where there is no viability, does the state’s right to protect that fetus trump a woman’s right to make decisions over her own body?” Reeves asked.
Although Mississippi’s ban does not touch abortions performed before 15 weeks, abortion advocates have argued that allowing a ban on pre-viability abortions would open the door to making all abortions illegal. Last month a member of the Louisiana House also introduced a bill that would ban abortions at 15 weeks.
There’s also evidence that conservative groups across the U.S. have an eye on Mississippi. Representatives from the American Family Association, a Christian fundamentalist organization, attended yesterday’s bill signing in the governor’s office. 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. The American Family Association is one of the coalition of groups in ADF.
Reeves seemed to note the significance of setting the ban at 15 weeks specifically, which is just early enough to trigger a court case in Mississippi. Because the Jackson Women’s Health Clinic only performs abortions up to the 16th week of pregnancy, and it is the only clinic in the state that performs abortion, no one in the state would have standing to challenge a later ban.
“Did they say why they went for 15 weeks when the state unilaterally doesn’t provide abortions after 16 weeks?” Reeves asked.
Barnes said he didn’t know why the state chose that 15 weeks, but he acknowledged that the one week difference meant the law wouldn’t actually affect many unborn children in the state. Approximately 2000 abortions are performed in Mississippi each year. In 2017, only 78 of those were performed after the 15th week of pregnancy.
“It’s not as if there are hundreds of abortions performed every year that this will stop,” Barnes said.
But Barnes also said that the life of the fetus was just one of many interests the state had. Flipping the script on McDuff’s arguments, Barnes argued that “irreparable harm” was far more likely to be caused by the abortion procedure than by denying it.
“The clinic chooses not to perform abortions after the 16th week. And the reason is that they are riskier and more complicated,” Barnes said, listing several complications such as blood clots and cervical rupture that increase with gestational age of the fetus. “The reason they choose not to is a tacit admission of part of our argument.”
Barnes cited a report from the American College of Obsetrics that showed that the risks of abortion increases with the gestational age of a fetus. Plaintiffs did not dispute these findings but argued that even late term abortion carries far fewer health risks to the woman than childbirth. A study released on Friday from the National Academies of Sciences, Engineering and Medicine determined that abortion is one of the safest surgical procedures in the United States.
In his closing arguments, McDuff called the argument that risk increases with gestational age a tactic to unravel the right to abortion.
“If that argument is considered to be legitimate, the state could continue to dial back abortion until it is eviscerated,” McDuff said. “Viability increases at the 12th week, it increases at the 6th week, it increases at zero weeks… They could completely abolish abortion.”
Still, the state’s interest in protecting maternal health remained central to the argument against granting the temporary restraining order. Barnes argued that restrictions on abortion before the point of viability had been upheld in appellate courts and at the U.S. Supreme Court. He cited Gonzales v. Carhart, a 2007 case that banned a certain type of abortion procedure before fetal viability because the court determined that it was not necessary for the health of the woman.
McDuff called these arguments for the state to protect women’s health a backdoor way of regulating their behavior.
“The reason for this law is to prevent women from making their own choices and to make them bear their pregnancies,” McDuff said. “And the Supreme Court has said time and again that is unconstitutional. This one is going to have to be struck down again. This is beyond undue burden. This is a ban.”
In his argument, Barnes pointed out that the burden of proof for the restraining order was on the plaintiffs, but at times it felt like the burden was on the state as Reeves challenged Barnes to provide a constitutional or scientific basis for the state’s arguments.
The abortion bill itself details a number of health risks about abortion. Reeves questioned the findings in the law, wondering if the Legislature had held a public hearing on the bill or something where he could reference the logic behind these claims. Barnes pointed to the study from the American College of Obstetrics but said, to his knowledge, lawmakers had not held a hearing.
“But what evidence do we have besides this study, when other states have struck down bans before 20 weeks?” Reeves asked. “Should I give the legislature that much deference? I don’t know if doctors came in and testified at that hearing. I don’t know if there was a hearing. Lots of stuff happens at that Legislature that just should not happen.”
Supporters of the 15-week ban have often argued that 75 percent of nations don’t allow abortion after the first trimester, which is approximately 12 weeks into a pregnancy. Barnes repeated this statistic, saying Mississippi was simply bringing its law up to the international standard.
Reeves didn’t buy it.
“Does this state typically look and see what other countries are doing to determine legislation? That’s a rare instance that Mississippi looks to other countries for guidance,” Reeves said with a chuckle.