Shannon Brewer is used to fighting misinformation about abortion, but something has weighed particularly heavily as of late. Patients from across Mississippi and in neighboring states have called wondering if the clinic has shut down or if they can schedule an abortion after six weeks into their pregnancy.
In fact, the Jackson Women’s Health Organization, which Brewer runs after working at the clinic for nearly two decades and is the only abortion clinic in Mississippi, is open and seeing patients. The confusion partly comes from the latest Mississippi abortion restriction to land in federal court.
Recently, Brewer was among observers listening to attorneys’ arguments in a Mississippi case involving a prohibition on abortions after 15 weeks of pregnancy, with potential implications in two other states, Texas and Louisiana. Together, these states comprise the 5th U.S. Circuit Court of Appeals, a frequent stop for civil rights cases from these states, often en route to the U.S. Supreme Court.
During the 45-minute hearing in New Orleans, Brewer and about 75 others leaned in to listen in an acoustically challenged courtroom to attorneys representing the clinic and lawyers for the state press their cases.
This is the first Mississippi abortion restriction to reach the federal appeals stage since 2014, when the court allowed the clinic to remain open while a case over so-called admitting privileges law made its way through the courts.
That restriction, which required abortion providers to have admitting privileges at a local hospital, was ultimately struck down. Every law prohibiting abortion before viability, mostly in the form of bans after a particular week of pregnancy, that has reached the federal appeals level has been overturned. The 5th Circuit, hearing the current 15-week case, has not weighed in recently, but did overturn a Louisiana ban in 1992.
Representing the state, attorneys from the Mississippi attorney general’s office argued the legislation passed and signed in 2018 called “The Act to Prohibit Abortion After 15 Weeks,” which was the most restrictive abortion bill in the country at the time, is “not per se” a prohibition. Therefore, they argued, the law is not a ban but a restriction, which does not violate federal law as an undue burden on women seeking abortions.
Beth Klausmann, an attorney for Texas, argued that a lower court should have allowed evidence the state believes shows the 15-week ban is not an undue burden.
“The clinic admits that they are only offering abortions two to three times a week, so I think there’s a significant question as to whether women seeking abortions after 15 weeks are forced to do so by state law or because of the clinic’s preferences as to when it chooses to open,” Klausmann said.
Hillary Schneller, an attorney from the New York-based Center for Reproductive Rights representing the clinic, countered, arguing that Mississippi law not the clinic’s preference affects when it sees patients.
“Mississippi has many restrictions on abortion that make it more difficult for a woman to get an abortion earlier – the 24-hour mandatory delay law, abortion facility licensing schemes that have made it so there is one clinic in the entire state – so, it’s a little disingenuous to be talking about the various reasons women may seek abortions after 15 weeks when the state has done nothing to help them get abortions earlier or support their pregnancy decisions.”
Brewer, the clinic director, echoed Schneller and said the state’s argument is part of a bigger misinformation problem.
“We are open every day but we only see patients three to four days now. All of these (attorneys) are very aware why we only see patients that amount of days — our doctors aren’t local doctors because they fly in to work days back to back. We can’t get local doctors because the (anti-abortion protesters) stalk their homes and call their families,” she said. She added local doctors want to help the clinic, but the combative climate prevents them from doing so.
In many court battles over abortion access, there are often two key questions — the viability of a fetus and undue burden.
Mississippi’s attorneys wanted to introduce evidence in favor of the state’s interests in regulating abortion, including maternal health, regulating medicine and protecting unborn life.
U.S. District Judge Carlton Reeves rejected the state’s evidence, citing one legal question: Does this law ban some abortions pre-viability? Neither side contests that it does – so he permanently blocked it due to long-standing Supreme Court precedent.
In addition, the state wanted to present what they describe as new evidence about maternal health and fetal pain, facts they say have changed substantially in recent years. The state also said the lower court should have considered whether the 15-week ban represents an undue burden.
The medical community largely rejects arguments that a fetus can feel pain pre-viability. The state’s own maternal mortality review committee scrupulously details maternal health and reasons why women in Mississippi experience 1.2-times the national rate of pregnancy-related death. Of the 136 maternal deaths since 2013, none have been attributed to abortion, according to the most recent data.
Two landmark Supreme Court decisions dictate abortion litigation. Roe v. Wade legalized abortion in 1973, solidifying women’s 14th Amendment right to choose an abortion. Planned Parenthood v. Casey upheld Roe in 1992, but added some balance. Casey added a new framework, the undue burden test, and reiterated that while states have an ability to restrict abortion, they cannot prohibit a woman from seeking one before a pregnancy is viable — when a fetus can survive on its own outside of the womb, generally around 24 or 25 weeks of a woman’s pregnancy. The central holding of Casey says state’s interests in regulating abortion are important, but they do not outweigh a woman’s choice until a certain point in pregnancy.
The current 15-week case is just one of several recent challenges to Roe and Casey. In addition to the licensing regulations challenged in 2012 that threatened to shut Jackson Women’s Health down, the state passed a six-week prohibition this year before the 15-week case had been appealed. It’s been temporarily blocked and is currently awaiting an appeal in the same 5th Circuit that heard oral arguments for the 15-week case last week.
Much of the state’s argument revolves around a so-called distinction. “This is not a ban, it’s a restriction,” they argue.
Legally, states cannot ban abortion, but they can restrict it. Judge Reeves decided this case is a ban because it would prohibit some women from accessing an abortion, so he tossed the restriction argument. If it’s a ban, the only legal question is: Is it before viability? If so, then it’s unconstitutional.
Viability is a medical function. The state essentially seeks to intervene on the viability question by saying it’s not the proper argument to be applied, arguing the proper legal question revolves around undue burden: Does this law place an undue burden on women seeking abortions? They argue that they were not allowed to bring evidence to suggest that it is not.
The Center for Reproductive Rights, which represents the clinic, argues, and Reeves decided, that any law that limits a woman’s ability to seek a pre-viability abortion based on amount of time passed in her pregnancy, is a de facto ban on those women who have passed that cut-off period.
The state also maintained that too few women seek abortions at 15 weeks for the law to constitute an undue burden. Information from court briefings show that 90 women sought abortions between the 15 and 16-week point in 2017. But, data show that a lot of women leave Mississippi to access abortions — almost half — making it impossible to calculate how many Mississippi women would be affected, advocates argue.
“The right to decide whether to have an abortion before viability protects each woman individually. The absolute number of women that this ban affects doesn’t matter. For each woman who is being prohibited from making this decision, this law is a complete and insurmountable obstacle,” said clinic attorney, Schneller.
Attorneys for Mississippi declined an interview for this story, but said in an emailed statement:
“The Attorney General’s Office argued that the Supreme Court’s decision in Planned Parenthood v. Casey required the district court to consider evidence of the State’s interest when reviewing the constitutionality of Mississippi’s law restricting abortions after 15 weeks. The district court’s decision not to consider the State’s interest was an error and deprived the State of the opportunity to develop a full factual record on which to judge the constitutionality of Mississippi’s law. The Attorney General’s Office asked the Fifth Circuit to correct this error and to return the case to the district court for the development of a full factual record.”
Schneller maintains that the law is a ban and, therefore, unconstitutional.
“The alternative would be states being able to force women to continue a pregnancy against their will before viability, which obviously would completely hollow out any guarantee of autonomy and liberty,” she said. “I think the fact that Mississippi has passed a 15-week ban and then a 6-week ban shows that they are trying to subject women’s fundamental right to perpetual re-litigation, even though the court has been clear that these bans will not stand up in court.”