Mississippi’s 15-week abortion ban again struck down; supporters hope Supreme Court is ‘ultimate arbiter’

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Eric J. Shelton, Mississippi Today/Report For America

Attorney Hillary Schneller, of Center for Reproductive Rights, talks to media outside of the Thad Cochran United States Courthouse in Jackson in May 2019.

A federal appeals court in New Orleans struck down Mississippi’s 15-week abortion ban on Friday, dealing a blow to a law its authors hoped would significantly weaken Roe v. Wade.

The bill, passed during the 2018 legislative session, would have stopped a woman from getting an abortion after her 15th week of pregnancy. Although the one clinic in Mississippi that provides abortions does not perform them after 16 weeks of pregnancy, women in Mississippi are legally able to receive an abortion until their 20th week of pregnancy.

In his majority opinion, Judge Patrick Higginbotham wrote that banning abortion at 15 weeks violates the Supreme Court precedent, which has consistently ruled that a woman’s right to choose takes priority until the point of fetal viability, usually 23 weeks.

“In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before viability. States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right, but they may not ban abortions,” Higginbotham wrote.

U.S. District Court Judge Carlton Reeves had already struck down this law last year before the state appealed.

Judge James Ho concurred with the ruling, but criticized Reeves’ order. Ho was troubled by Reeves’ handling of the case, he wrote.

“The opinion issued by the district court displays an alarming disrespect for the millions of Americans who believe that babies deserve legal protection during pregnancy as well as after birth, and that abortion is the immoral, tragic, and violent taking of innocent human life,” Ho wrote.

Ho also took issue with what he called Reeves’ characterization of the ban as sexist and racist, saying that Reeves ignored that fact that many women oppose abortion as well as “the racial history of abortion advocacy as a tool of the eugenics movement.”

Abortion opponents often cite eugenics, the belief that human genetics can be improved through the use of reproductive control. Supporters of limiting abortion access in Mississippi have made similar claims. Gov. Phil Bryant last year cited an unverified claim about the impact of abortion on the African American population.

While the decision disappointed advocates of the abortion ban, it did not surprise them. Sen. Joey Fillingane, R-Sumrall, who authored the legislation and shepherded it through the state Senate, said the 5th U.S. Circuit’s hands are essentially tied until the Supreme Court takes up the issue of viability.

“(Individual judges) may feel they need to rule another direction, but they are bound by Supreme Court precedent. So regardless of how they ruled the Supreme Court is the ultimate arbiter of all these questions,” Fillingane said.

Fillingane said that he hopes the state will appeal this decision, so the Supreme Court can weigh the constitutionality of the bill.

In the meantime, though, this ruling also throws the future of another Mississippi law into question.

During the 2019 legislative session, Bryant signed an even more restrictive abortion ban into law, one preventing a woman from getting an abortion as soon as a fetal heartbeat can be detected, in many cases as early as five or six weeks. Because many women do not realize they’re pregnant until six weeks into the pregnancy, critics have called it a de facto ban on all abortions.

On Twitter Friday night, the Center for Reproductive Rights, which had argued against the ban before the 5t Circuit in October, called the law “blatantly unconstitutional.”

“W/ this ruling, Mississippi … should finally get the message. Instead of wasting taxpayer dollars to defend multiple abortion bans that won’t stand up in court, they should be working on other issues—like addressing the state’s alarming maternal mortality rates,” the Center said, attributing the statement to attorney Hillary Schneller.