For the second time in just over a year, Mississippi is headed to federal court to defend a new anti-abortion law.
On Thursday, the Center for Reproductive Rights sued Mississippi, claiming that the new ban, which outlaws abortion as early as the sixth week of a woman’s pregnancy, violates long-standing constitutional protections for the procedure.
“Once again, the mostly male Mississippi Legislature is trying to make decisions for Mississippi’s women about matters of childbirth,” said attorney Rob McDuff of Jackson, co-counsel on the case for the Mississippi Center for Justice. “Like other legislative efforts before it, this new law is both unfair and unconstitutional.”
Technically, this lawsuit expands a challenge to Mississippi’s 15-week ban, originally signed into law by Bryant last year and permanently blocked by a federal judge in November. The lawsuit was expanded once before, in April, to include a challenge to Mississippi’s so-called “TRAP laws,” which are smaller regulations, such as waiting periods and parental permission requirements, that opponents argue, when added together, can block a woman from getting the procedure.
Gov. Phil Bryant did not immediately respond to a request for comment on the lawsuit. But on the day he signed the law last week, he said he expected a legal challenge, couching his support for the ban in strictly moral terms.
“We will all answer to the good Lord one day,” Bryant said in a tweet last Thursday. “I will say in this instance, ‘I fought for the lives of innocent babies, even under threat of legal action.'”
The one part of the argument that all of Mississippi’s elected officials seem to agree on is that the law, as passed, is unconstitutional. That is because U.S. Supreme Court precedent on abortion, as established by Roe v. Wade (1973) and refined in Casey v. Planned Parenthood (1992), protects a woman’s ability to have an abortion until the fetus can live outside of the woman’s womb. This has never happened before the 21st week of pregnancy.
Advocates for six-week bans have argued, however, that the heartbeat—not viability outside the mother—is a more accurate measure of life’s beginning.
“The heartbeat has been universally hallmark of life since man’s very beginning,” Bryant told a small crowd in the Capitol rotunda moments before he signed the bill.
This has been true, classically speaking, though modern medical practitioners more frequently rely on brain activity to measure life’s end.
Although the law technically allows abortion up until the point that doctors can detect a heartbeat, the plaintiffs have argued that a six-week cutoff, combined with the cost of the procedure and Mississippi’s TRAP laws, make it, in practical terms, a near total block on all abortion.
“Six weeks of pregnancy is just two weeks after the average woman misses her period.” said Shannon Brewer, director of Jackson Women’s Health Organization. “Nearly all of the patients we provide abortion care for are past six weeks pregnant. Many have spent weeks saving up the money for an abortion and have traveled hundreds of miles to get to our clinic. If this law takes effect, those women won’t have a chance.”
This is the second lawsuit in what could be a wave of legal action this year against so-called “fetal heartbeat” bans. This month a federal judge blocked a six-week ban in Kentucky the same day Gov. Matt Bevin signed it into law, and last week the Georgia state legislature passed its own six-week ban. Similar bans are alive in eleven other state legislatures this year.
This kind of traction for six-week abortion bans is unprecedented. Mississippi lawmakers have introduced similar bills every year since 2012. Until this session every single one has died in committee. Nationally, so-called heartbeat bans have also failed to succeed in court. In addition to the Kentucky law, six-week bans in Iowa and North Dakota have been struck down by the Iowa state Supreme Court and the Eighth Circuit Court of Appeals, respectively.
But Republicans, emboldened by the appointment of Justice Brett Kavanaugh to the U.S. Supreme Court late last year, say they’re optimistic that the more conservative court will take up the heart beat argument, which has until now never made it past an appeals court.
“Yes, absolutely it was a factor,” Sen. Joey Fillingane, R-Sumrall, told Mississippi Today in February. “The appointment of Justice (Neil) 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?’”
Even the term “fetal heartbeat ban,” which describes laws that prohibit abortion as soon as a heartbeat can be detected, is controversial. Opponents argue the term is a misnomer since a fetus is technically an embryo until the 13th week of pregnancy, and the organ that will become a heart is still just a cluster of cells
The Center for Reproductive Rights filed the lawsuit on behalf of two plaintiffs, the Jackson Women’s Health Clinic, which is Mississippi’s only abortion provider, and Dr. Sacheen Carr-Ellis, a doctor at the clinic. They are suing Dr. Thomas Dobbs, who heads the state Department of Health.