JACKSON, Miss. (AP) — Federal appeals court judges are set to hear arguments Monday over a Mississippi law that would ban most abortions after 15 weeks of pregnancy.
It is one of many laws pushed by conservative states in recent years, ultimately aimed at trying to persuade the increasingly conservative Supreme Court to further restrict the time abortion is legally available.
Republican Gov. Phil Bryant signed the 15-week ban into law on March 2018, and it has never taken effect. The state’s only abortion clinic immediately sued the state, and U.S. District Judge Carlton Reeves temporarily blocked the law the day after Bryant signed it.
In November, Reeves struck down the law, writing that it “unequivocally” violates women’s constitutional rights because it bans abortion weeks before viability.
The U.S. Supreme Court, in its 1973 ruling in Roe v. Wade, said women have the right to terminate pregnancies until viability when a fetus can survive outside the womb. Reeves wrote that viability must be determined by trained medical professionals, and the “established medical consensus” is that viability typically begins at 23 to 24 weeks after the pregnant woman’s last menstrual period.
The Mississippi clinic, Jackson Women’s Health Organization, does abortions through 16 weeks, according to owner Diane Derzis.
In arguments Monday, attorneys for Mississippi will ask the 5th U.S. Circuit Court of Appeals to overturn Reeves’ ruling and let the law take effect, while attorneys for the clinic will argue that Reeves was correct and his ruling should stand.
The 5th Circuit handles cases from Mississippi, Louisiana, and Texas, and it’s generally considered one of the most conservative appeals courts in the U.S.
Louisiana passed a 15-week abortion ban in 2018, but it becomes law only if a federal court upholds the Mississippi law.
Attorneys for the Mississippi clinic say in court papers that the panel of three appeals judges should focus on whether Reeves properly followed the Supreme Court precedent on viability.
The Mississippi attorney general’s office argues that Reeves should have let state lawyers develop a case asserting that a fetus at 15 weeks is “capable of experiencing pain.”
Bryant filed arguments separate from the attorney general’s office, and his were written by John Bursch, a former Michigan solicitor general.
“By prohibiting the taking of preborn life after 15 weeks gestation, Mississippi exercises its right to affirm the value of human life at all stages, but particularly at a stage when a preborn baby has all the physical attributes of a child after birth and only needs additional time to grow to survive outside its mother’s womb,” Bursch wrote.
The state also argues the risk of complications from abortion increases the later it is performed.
Hillary Schneller, an attorney for the Center for Reproductive Rights, wrote on behalf of several clinic attorneys: “With respect to the State’s purported interest in maternal health, the Supreme Court has held that, until viability, it is for a woman, and not the State, to compare the risks of pregnancy and childbirth and abortion, among other factors, in deciding whether to terminate or continue a pregnancy.”
The Mississippi law would allow exceptions to the 15-week ban in cases of a medical emergency or severe fetal abnormality. Doctors found in violation would face mandatory suspension or revocation of their medical licenses.
Even as the court fight continues over the 15-week ban, Mississippi lawmakers came back this year and passed another law to ban most abortions at about six weeks, when fetal cardiac activity can be detected. Reeves also blocked that law, saying it “smacks of defiance to this court.” Attorneys are filing separate arguments about it to the 5th Circuit. The hearing Monday is not expected to delve into the six-week ban.
Several states have passed laws seeking to ban abortion weeks before viability, and an Alabama law that’s scheduled to take effect in November would ban abortion with few exceptions. Schneller said in an interview Friday that the Mississippi case over the 15-week ban is the furthest along in the legal process.
“It’s important to remember none of the bans are in effect and abortion is legal in all 50 states,” she said.