Mississippi law banning abortions as early as 6 weeks heads to federal court
It was only six months ago that federal district Judge Carlton Reeves struck down a Mississippi law that banned abortion after 15 weeks of pregnancy, holding that the state was “wrong on the law” and that its Legislature’s “professed interest” in women’s health amounted to “pure gaslighting.”
The state’s response was to pass an even more restrictive law in March that bans abortion as early as six weeks.
On Tuesday, Reeves, who sits on the US District Court for the Southern District of Mississippi, will hear a new challenge from astonished critics who say the Legislature moved brazenly to both disregard his earlier opinion and Supreme Court precedent.
Reeves, like other district court judges across the country, is bound by Supreme Court precedent holding that women have a constitutional right to end a pregnancy prior to viability, and that the government may not unduly burden women seeking to exercise the right. Even so, new challenges are hurtling toward the courts from Republican-led states emboldened by a 5-4 conservative Supreme Court majority and President Donald Trump, who over the weekend reaffirmed that he is “strongly Pro-Life.” In the same tweet, the President suggested he was nominating justices and judges to the courts who might see the law the same way.
“We have come very far in the last two years,” Trump tweeted.
Reeves is no stranger to the President’s tweets. He gained national prominence last month when he delivered a speech at the University of Virginia Law School evoking the history of the South to publicly criticize Trump for his attacks on judges.
Quoting from Trump’s tweets, campaign speeches and interviews, but never using the President’s name, Reeves said: “When politicians attack courts as ‘dangerous’, ‘political’ and guilty of ‘egregious overreach’ you can hear the Klan’s lawyers, assailing officers of the court across the South.”
The speech did not touch on the issue of abortion.
But in his November 2018 opinion striking down the state’s 15-week ban, Reeves turned to the history of the South.
“Many view Roe as the starting point for abortion in America, but abortion in America did not begin in 1973,” he wrote, referring to the year the landmark Supreme Court opinion Roe v. Wade came down. In a footnote, he said that when the state constitution was adopted, abortion was legal until “quickening” which was between four and five months after the last menstrual period. He said the 15-week-ban was “closer to the old Mississippi bent on controlling women.”
“So why are we here?” Reeves asked rhetorically. “Because the State of Mississippi contends that every court who has ruled on a case such as this misinterpreted or misapplied prior Supreme Court abortion precedent.”
Reeves added: “This Court concludes that the Mississippi Legislature’s professed interest in ‘women’s health’ is pure gaslighting.”
Opponents hope Reeves will issue a preliminary injunction, blocking the new law before it is set to take effect. They say the law, like similar measures in other states and a more restrictive abortion ban in Alabama, is meant to be unconstitutional so that it might trigger Supreme Court review.
“The Supreme Court has reaffirmed many times over nearly 50 years, and as recently as 2016, that a woman has the right to decide whether to continue her pregnancy at any point before viability,” said Hillary Schneller of the Center for Reproductive Rights, who will appear before Reeves on Tuesday to oppose the law on behalf of Mississippi’s only clinic, the Jackson Women’s Health Organization.
The state law prohibits abortion of an “unborn human individual with a detectable fetal heartbeat” with an exception to prevent the death of the pregnant woman or to prevent a “serious risk of the substantial and irreversible impairment of a major bodily function of the woman.” A doctor performing an abortion after a detectable fetal heartbeat is subject to license revocation and disciplinary action.
“Many women don’t even know they are pregnant at six weeks, and even those who do will find it nearly impossible to obtain an abortion so quickly, especially in a state with just one clinic,” said Schneller, calling it a “near total ban on abortion.”
In court papers she said that the new law is the “latest salvo” in the state’s “decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade” but that at six weeks “no embryo is capable of surviving for a sustained period outside the womb, with or without medical intervention.” She pointed out that women who are breastfeeding or who use hormonal contraceptives may not realized they have missed a period for weeks.
‘A new national movement has begun’
After the President’s tweet on abortion and judges over the weekend, Mississippi Gov. Phil Bryant responded with approval.
“Another reason I support this President,” the Republican governor said in his own tweet. “Other states are following Mississippi with heartbeat bills. A new national movement has begun. We now have a President that stands for the unborn. Look for the left to increase their hateful attacks.”
Defending the law, which is slated to go into effect on July 1, state officials, including Thomas E. Dobbs, Mississippi’s State Health Office, say it was passed to further the state’s interest in regulating the medical profession in order to “promote respect for life.”
They acknowledge Supreme Court precedent on viability but argue that once a fetal heartbeat is detected, the “chances of the fetus surviving to full term are 95%-98%.”
The law is meant to “prohibit procedures that destroy the life of a whole, separate, unique living human being,” the officials say in court papers. It does not amount to a total ban on abortion in part because sometimes a fetal heartbeat is not detectable until as late as 12 weeks, particularly if an abdominal ultrasound is performed.
Because the bill allows for exceptions, it can’t be compared to previous opinions, Mississippi argues. Since 1992, the 5th US Circuit Court of Appeals “has not decided a case involving a law which prohibited some but not all abortions, and has not considered a law that restricts abortions based on the existence of a fetal heartbeat or beyond a specific gestational age,” the state says.
“Instead of banning abortion, S.B. 2116 regulates the time period during which abortions may be performed,” the filing adds. “As such, it is akin to laws regulating the time, place, or manner of speech, which have been upheld as constitutional.”
But Reeves signaled in the earlier opinion that his hands were bound.
“With the recent changes in the membership of the Supreme Court, it may be that the State believes divine providence covered the Capitol when it passed this legislation,” he wrote in November.
“If overturning Roe is the State’s desired result, the State will have to seek that relief from a higher court,” he added. “For now, the United States Supreme Court has spoken.”