Several developments on the abortion front have unfolded in recent weeks that could have major impact on both women’s rights to access abortions and the ability of groups to voice their concerns over the issue. Here’s where they stand, and what’s coming next:
6-week abortion ban/Heartbeat Bill
The latest: A federal appeals court’s three-judge panel blocked the state’s six-week abortion ban, upholding a lower court’s ruling from May 2019. The law was “doomed,” according to the ruling, because the panel was bound by a recent decision finding a 15-week abortion ban unconstitutional.
“If a ban on abortion after 15 weeks is unconstitutional, then it follows that a ban on abortion at an earlier stage of pregnancy is also unconstitutional,” reads Thursday’s order blocking the six-week ban.
Former Gov. Phil Bryant signed the six-week ban, dubbed a heartbeat bill, into law March 2019, making it illegal for a doctor to perform an abortion once a fetal heartbeat is detected.
“This is now the second time in two months the Fifth Circuit has told Mississippi that it cannot ban abortion,” Hillary Schneller, senior staff attorney at the Center for Reproductive Rights who leads this and other lawsuits challenging anti-abortion laws in the state, said in a statement. “Despite the relentless attempts of Mississippi and other states, the right to legal abortion remains the law of the land … This court decided not two months ago that Mississippi’s 15-week ban was unconstitutional. Even the state agrees that, under that decision, the 6-week ban cannot stand.”
MS Letter to Fifth Circuit Re 6-week Ban, from CCR (Text)
Background: After Bryant signed the law, the New York City-based Center for Reproductive Rights quickly sued the state on behalf of the Jackson Women’s Health Organization, the only abortion clinic in the state. U.S. District Judge Carlton Reeves subsequently blocked the law from taking effect. However, the state appealed that decision while another measure banning abortions at 15 weeks was also under appeal.
When the six-week abortion ban bill was signed into law last year it was the most restrictive in the country, drawing national attention for attempting to ban abortions before many women know they are pregnant. Mississippi was one of nine states that passed abortion bans in 2019, including Alabama, Arkansas, Georgia, Kentucky, Louisiana, Missouri, Ohio, and Utah. Mississippi’s was the first to reach the appeals stage and is the farthest along in the court system.
Opponents of the six-week ban decried it as a brazen attempt to erode reproductive rights when the previous year’s ban was still winding its way through courts. Advocates, as well as Judge Reeves who first blocked the ban, pointed to the state’s poor maternal and infant health outcomes as hypocrisy in face of abortion restrictions that claim to advance the safety of women and fetuses. Scientists quickly rebuked the heartbeat metric as unsupported by medical science, calling it an “intentional obfuscation” unrelated to actual gestation development.
What’s next: The state has not yet announced whether it would appeal the ruling to the U.S. Supreme Court. “I am disappointed in the 5th Circuit decision yesterday on Mississippi’s heartbeat bill and am consulting with pro-life experts right now to determine the best strategy to advance the cause of life,” Newly elected Attorney General Lynn Fitch, whose office represents the state, told Mississippi Today in an email Friday.
15-week abortion ban
The latest: After a federal appeals court struck down the 15-week ban in December 2019, then-Attorney General Jim Hood asked the court to reconsider, which would have put the case in front of the entire 17-judge court.
The court declined last month to re-hear the case, reiterating that states can restrict but not outright ban abortion. Less than two months after courts affirmed the block of the 15-week ban, the subsequently passed, stricter six-week ban was brought before the 5th U.S. Circuit Court of Appeals panel earlier this month.
Background: At the time the strictest abortion law in the country, the state’s 15-week ban was signed into law March 2018. In November of that year, Judge Reeves blocked it. The state appealed, mounting the first federal appeals case of recent bans. Last October, the state and Center for Reproductive Rights argued the case before the three-judge panel, which ultimately ruled it unconstitutional in December 2019.
After the October arguments, in which Texas state attorneys lead the charge over similar abortion restrictions in Texas, Mississippi and Louisiana, opposing attorney Schneller addressed the irony and question of the pending six-week ban: “The cases are raising the same exact issue – whether you can ban abortion before viability and the Supreme Court has already decided and said no, states cannot do that,” she said. “I think the fact that Mississippi has passed a 15-week ban and the six-week ban shows that they are trying to subject women’s fundamental right to perpetual relitigation even though the court has been clear that these bans will not stand up in court.”
What’s next: Attorney General Fitch told Mississippi Today in an email that she is focused on advancing the 15-week ban amidst being “disappointed” by the six-week ruling. “In the meantime, my office will continue to zealously appeal our 15-week regulation to the U.S. Supreme Court and strongly defend our pro-life laws under attack at the trial court level,” she said.
City of Jackson “buffer zone” rule
The latest: Earlier this month, federal Judge Daniel Jordan agreed with anti-abortion plaintiffs that the city of Jackson’s buffer zone – meant to keep protesters at the Jackson Women’s Health Organization away from patients – was a state issue, not a federal one and kicked the case back to state court. Currently in effect, the ordinance requires protesters to stay 8 feet away from patients, and bans people from congregating or demonstrating within 15 feet of the abortion facility.
Background: Last year Jackson passed an ordinance that created a “buffer zone” around the state’s only abortion clinic, preventing face-to-face contact with patients and protesters. An anti-abortion group called “Sidewalk Advocates for Life,” affiliated with local crisis pregnancy centers, sued the city saying the ordinance violates their free speech under Mississippi law. Lawyers for Jackson last year filed to move the case into federal courts citing the case’s First Amendment questions. The plaintiffs disagreed, arguing their challenges to the city relied on state rather than federal constitutional protections.
The Mississippi Justice Institute, which is challenging the ordinance on behalf of plaintiffs, applauded the decision. “Jackson’s argument completely disregarded the principles of federalism upon which our country was founded, denigrated the competence of state courts to hear state law claims, and was dismissive of the authority of state courts to interpret their own state’s Constitution,” said Aaron Rice, director of the institute, in a statement. “Fortunately, the federal court understood that, and ensured that state courts will have this important opportunity to interpret the Mississippi Constitution’s free speech protections.” A spokeswoman for Jackson declined to comment.
What’s next: The case will stay in federal court until Judge Jordan determines attorney fees the city of Jackson owes to plaintiffs’ attorneys at the Mississippi Justice Institute, the legal arm of the conservative think tank Mississippi Center for Public Policy. Afterward, the case will move back to local state court. Currently, the buffer zone is still active.
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