‘A tremendous amount’: Cost of defending state in abortion lawsuits could soar past $1 million

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Alex Milan Tracy, Sipa USA/Associated Press

Pro-life supporters rally in Pioneer Courthouse Square in Portland, Oregon, on January 14, 2018, 45 years after the Supreme Court case of Roe v. Wade which affirmed the legality of a woman’s right to abortion.

The recent appeal of a lawsuit over a 2018 law is the latest move in a string of legal battles over abortion dating to 2012 that have cost taxpayers more than $225,000 and could exceed $1 million.

This week, Mississippi Attorney General Jim Hood announced that he would appeal the decision of a federal judge in Mississippi blocking the state’s ban on abortions after 15 weeks of pregnancy. The 15-week ban now heads to the 5th U.S. Circuit Court of Appeals—the same court that previously ruled that neighboring Louisiana could not prohibit Medicaid reimbursements to Planned Parenthood; the U.S. Supreme Court upheld that decision last week, nullifying a similar law in Mississippi.

In addition to being a setback for conservative policymakers whose stated goal is to make Mississippi an abortion-free state, the court fights have come with a hefty price tag for taxpayers.

Since 2012, the state has defended three abortion-related cases through various federal courts, lawsuits stemming from bills the Legislature passed and Gov. Phil Bryant signed into law. The courts have fully or partially blocked each of these measures, which Hood’s office has spent $225,940 in attorneys’ time defending. The attorney general calculated the sum by multiplying the number of hours their attorneys worked on the cases by the agency’s $65-per-hour rate.

Hood, a Democrat who is running for governor, said he defends the laws because it’s his duty as the state’s top lawyer.

“Three or four different federal circuit courts have ruled that 20 weeks was too short a time period restriction. The Fifth Circuit hasn’t ruled yet and it’s a more conservative court as far as circuit courts go, so we owe it to the Legislature,” Hood told reporters Tuesday.

In addition to the time the state’s lawyers have put in, taxpayers could be on the hook for more than $1 million to pay attorneys’ fees for the winning plaintiffs in cases Mississippi lost.

In 2012, the Legislature approved a measure requiring doctors who provide abortions to be OB-GYNs and obtain hospital admitting privileges.

Subsequently, the Center for Reproductive Rights sued the state in 2012 on behalf of Jackson Women’s Health Organization and one of the clinic’s physicians, Dr. Willie Parker, saying the regulations were medically unnecessary and an attempt to shutter the state’s last abortion clinic.

A federal judge quickly blocked enforcement of the regulations. After winding through the court system for six years, it culminated with the Supreme Court denying a petition to hear the case, permanently upholding the district court’s original decision that blocked the admitting privileges portion, but upheld the OB-GYN requirement.

In all, Mississippi has spent almost 2,700 hours on cases involving regulations focused on the state’s sole abortion clinic, which Hood’s office estimates have cost $175,402. Additionally, the Center for Reproductive Rights has asked for $1.1 million in attorney’s fees for the 2012 case; that request remains pending. 

Four years after passing the admitting privileges bill, the Legislature passed SB 2238, which blocked Planned Parenthood — operators of one clinic in the state that does not perform abortions — from receiving Medicaid reimbursements for any care. Planned Parenthood Southeast and the organization’s Memphis branch sued and won in federal district court. Because of a federal appeals court ruling that struck down a similar measure in Louisiana, Mississippi’s Planned Parenthood law remains blocked. 

According to Hood’s office, the state spent approximately $2,500 on the Planned Parenthood case — at least two and a half times the amount the state had reimbursed the provider in 2015, the year before the Legislature passed the bill.

Then, in March of this year, the Legislature passed a bill banning abortions after 15 weeks of pregnancy, which already has involved 737 hours of attorney’s time and cost $47,905, according to the attorney general’s office.

“From the beginning, when this was brought before the Legislature, it was clear that court precedent was on our side,” said Felicia Brown-Williams, state director for Planned Parenthood Southeast, of the attempt to defund her organization. “The reality of every single lawsuit having gone our way in the history of this issue did not sway the state Legislature.”

Mississippi lawmakers are unlikely to be deterred by the court rulings in abortion cases. Republican Gov. Phil Bryant — who chaired a committee to add a so-called personhood amendment to the state constitution, which would have defined life as beginning at conception during his 2011 gubernatorial campaign — said during a 2014 speech that he had a personal goal of ending abortion in Mississippi.

At a ceremonial signing of the 15-week abortion ban, Bryant quipped, “We’ll probably be sued here in about a half hour, and that’ll be fine with me. It is worth fighting over.”

Emails and phone calls to Bryant’s office for this story were not returned.

In his ruling striking down the 15-week abortion ban, Judge Carlton W. Reeves challenged the Legislature’s motivations, noting that the “litigation costs the taxpayers a tremendous amount of money.”

Reeves wrote in his opinion: “The State is making a deliberate effort to overturn Roe and established constitutional precedent. With the recent changes in the membership of the Supreme Court, it may be that the State believes divine providence covered the Capitol when it passed this legislation. Time will tell. If overturning Roe is the State’s desired result, the State will have to seek that relief from a higher court,” his decision reads. “Its leaders are proud to challenge Roe but choose not to lift a finger to address the tragedies lurking on the other side of the delivery room: our alarming infant and maternal mortality rates.”

Sen. Joey Fillingane, R-Sumrall, sponsored the measure to cut off payments to Planned Parenthood and believes the Supreme Court declined to consider the defunding cases because its conservative justices, who comprise the court’s majority, might want stronger cases to test the constitutionality of Roe v. Wade

“I think that we have obviously, along with a handful of other states … have been some of the most active state legislators in advancing the rights of the unborn and trying to protect unborn life in our state,” Fillingane said. “We have done our part and now we are really waiting on the court to weigh in. So I think ultimately it will be an issue that the Supreme Court will have to take up, but clearly they are not going to take this one up this year.”

Mississippi’s 15-week bill will now be tested in the 5th Circuit Court of Appeals — one step before from the U.S. Supreme Court. The Center for Reproductive Rights, the attorneys for the Jackson clinic, amended the case in April to challenge other abortion regulations — including a mandatory 24-hour waiting period, physician-only requirement and telemedicine ban. 

The center’s lawyers argue these restrictions were invalidated by the 2016 Supreme Court decision Whole Woman’s Health vs. Hellerstedt, which said states cannot place an undue burden on women seeking abortions. This amended part of the case is in discovery and a trial is tentatively scheduled for December 2020.