Mississippi could again have the nation’s most restrictive abortion law.
Emboldened by a newly conservative Supreme Court, House and Senate committees passed legislation that would ban abortions as soon as a fetal heartbeat can be detected, setting the stage for another legal fight between Mississippi and abortion-rights advocates.
Although Republican lawmakers have introduced so-called heartbeat bills for nearly a decade, House Bill 732 and Senate Bill 2116 are the first to pass out of a legislative committee. Both would ban abortions once a doctor can detect a fetal heartbeat, usually between six and eight weeks gestation. And while both bills make exceptions if the life of the mother is in jeopardy, neither makes an exception if the pregnancy is the result of rape or incest. Senate and House Public Health committees passed the legislation along party lines.
Although other states have passed fetal heartbeat bills, none have withstood constitutional scrutiny. And last year, a federal judge also deemed Mississippi’s less restrictive 15-week ban, passed during the 2018 legislative session, unconstitutional. But Sen. Joey Fillingane, R-Sumrall, and Rep. Sam Mims, R-McComb, who presented the Senate and House bills, respectively, said Trump’s recent appointment of Brett Kavanaugh to the U.S. Supreme Court could change the definition of “constitutional.”
“Yes, absolutely it was a factor,” Fillingane told Mississippi Today after the vote. “The appointment of Justice Gorsuch (in 2017) didn’t really change anything politically because you were replacing one very conservative justice with another very conservative justice. But then when Justice Kennedy announced his retirement plans and Justice Kavanaugh was ultimately seated, then I think people on the right—and left—starting thinking, ‘Oh my goodness. What does the new court look like from a political and ideological standpoint.'”
Speaking against the bills, Democratic lawmakers accused their Republican colleagues of using the new legislation as a political tactic and argued that passing a law the courts will likely find unconstitutional would waste state dollars. A Mississippi Today report found that Mississippi had already spent the equivalent of $225,000 in billable hours defending anti-abortion laws passed since 2012, and that the amount could ultimately exceed $1 million.
“Do we have any regard for taxpayer dollars just to experiment and pass legislation for solely political purposes, just because the people on the other end wanted to pass this and because the Lieutenant Governor wants something to run and campaign on?” said stte Rep. Chris Bell, D-Jackson, during the House Public Health Committee meeting.
Minutes after the Senate bill passed, Lt. Gov. Tate Reeves, who is running for governor, issued a statement of support for the bill, which Sen. Angela Hill, R-Picayune, and Chris Caughman, R-Mendenhall sponsored. Reeves’s Democratic challenger is likely to be Attorney General Jim Hood, whose office is has appealed the federal decision against last year’s 15 week ban to the U.S. Supreme Court.
“I thank Senators Hill and Caughman for introducing legislation to stop the barbaric practice of ending life in the womb even though a heartbeat is plainly detected,” Reeves said in a press release.
“I am committed to making Mississippi the safest place in America for an unborn child,” Reeves adding, echoing a common refrain of Mississippi Republicans, including Gov. Phil Bryant.
During the last legislative session, Bryant signed a bill banning abortion at 15 weeks gestation and announced doing so would make “Mississippi the safest place in America for an unborn child.” At the time Bryant signed the law in March, no other state banned abortion before 16 weeks gestation.
But Mississippi’s new law remained in effect for less than a day. The following morning U.S. District Court Judge Carlton Reeves temporarily blocked the law from taking effect. In November, Reeves struck down the law, calling it a “facially unconstitutional ban on abortions prior to viability.” Mississippi has appealed Reeves’s decision to the U.S. Fifth Circuit Court of Appeals.
But the specter of that 15-week ban hung over arguments about the newer, more restrictive ban Tuesday. During last year’s session, Fillingane, who sponsored the 15-week bill, explained that while he opposed abortion at any point after conception, he felt a bill allowing abortion up until 15-weeks gestation had a better chance of withstanding constitutional scrutiny because recent scientific advances made it likely that a fetus at that stage could survive outside the womb.
An earlier Supreme Court decision had determined abortion was legal until the point of viability, although no fetus born prior to 20 weeks gestation has ever survived.
But Fillingane told Mississippi Today on Tuesday that the viability argument that propelled last year’s 15-week ban to the governor’s desk was different from the argument fueling this year’s Senate and House heartbeat bills.
“It’s two different arguments,” Fillingane said. “I think this (bill) represents the personhood of the unborn child, and we’ll get a chance to see what the courts say about that.”
The debate over the bills grew heated in both houses, pinging from the potential expense of defending a lawsuit Democrats deemed frivolous to race and a woman’s right to choose and the politicization of each of these arguments.
Fillingane told Sen. John Horhn, D-Jackson, that Reeves’ opinion striking down the 15-week ban was the opinion of “one federal judge appointed by President Obama… and since that time there have been changes on the Supreme Court.”
“So why would we not wait on the courts to rule on the 15 week ban? You think the (constitutionality) is going to change because the composition of the court has changed?” Horhn said, calling the 15-week ban “frivolous.”
“I think we should do what’s in the best interest of Mississippi’s unborn children, Fillingane said.
“Any time you’re dealing with the life of a human being I would hardly call that frivolous. Eighty-two percent of children being aborted are African-Americans. And 17 percent are white children being aborted. So I might go to my hymnal. I believe red and yellow, black and white, they’re all precious in His sight. So that’s why we’re doing this bill today,” Fillingane said to Horhn, who is African American.
“So if we’re all precious in his sight, then why are you bringing up that demographic?” Horhn said, to low murmurs from committee attendees.
Asked later about his decision to bring up race with Horhn, Fillingane said, “I hope he’ll look at that (argument) and ask himself the question, ‘Do I really want to support a bill that so disproportionately affects African Americans in Mississippi?'”
Of the seven lawmakers who spoke either for or against the bills, Rep. Kathy Sykes, D-Jackson, was the only woman to offer an argument, reminding lawmakers that abortions took place before Roe v. Wade made them legal. “We are about to turn back the clock on women’s health if we do outlaw safe legal abortions,” Sykes said.
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