Outside the Beltway

Federal Judge Blocks Mississippi’s ‘Heartbeat’ Abortion Law

A Federal Judge in Mississippi has blocked Mississippi's law that purports to ban abortions after detection of a fetal heartbeat.

Doug Mataconis · Saturday, May 25, 2019 · 4 comments

A Federal District Court Judge in Mississippi has blocked the implementation of a restrictive and controversial new law that would ban most abortions in the Magnolia State, finding that the law places an undue burden on the rights of pregnant women under existing law:

A federal judge in Mississippi on Friday temporarily blocked a state law that effectively banned abortions after the sixth week of pregnancy.

Judge Carlton W. Reeves of the Federal District Court in Jackson issued a preliminary injunction against the ban, delivering another judicial rebuke of laws that seek to forbid abortions early in pregnancy — a type of measure that has gained traction across the South this year. The decision was also at least the second since November that limited Mississippi’s efforts to restrict abortions.

The law “threatens immediate harm to women’s rights” and “prevents a woman’s free choice, which is central to personal dignity and autonomy,” Judge Reeves wrote in his ruling. “This injury outweighs any interest the state might have in banning abortions after the detection of a fetal heartbeat.”

The Mississippi law, which was to take effect on July 1, would have barred abortions once health care providers were able to detect the pulsing of what would become a fetus’s heart, which can be as early as six weeks into pregnancy. The law was just one of the year’s so-called fetal heartbeat bills that, supporters and critics alike said, would effectively ban abortions before many women even knew they were pregnant.

Under the Mississippi law, abortions would have been permitted after the detection of fetal pulsing only to save a woman’s life or “to prevent a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman.” Doctors who performed abortions that were illegal under the statute could have been jailed for up to six months.

A court blocked a similar law in Kentucky in March, and comparable measures in Arkansas, Iowa and North Dakota faltered in the courts before that. But the history of courtroom defeats has not deterred abortion critics, who have championed similar restrictions this year in, among other states, Georgia and Ohio. Louisiana legislators are expected to vote on a comparable proposal next week.

The decision by Judge Reeves, an appointee of former President Barack Obama, was widely expected. The judge appeared skeptical of the law during a hearing on Tuesday, and in a decision last year that blocked Mississippi’s 15-week ban, he lashed out at state leaders for pressing proposals that he felt plainly defied Roe v. Wade, the 1973 Supreme Court ruling that legalized abortion nationwide.

“The state chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade,” the judge wrote in November.

“This court follows the commands of the Supreme Court and the dictates of the United States Constitution, rather than the disingenuous calculations of the Mississippi Legislature.”

He added, in a footnote that drew widespread attention beyond the state, that the Legislature’s “professed interest in ‘women’s health’ is pure gaslighting.”

The legal challenge to Mississippi’s new law was brought by the state’s only abortion clinic, Jackson Women’s Health Organization. The state will almost certainly appeal the decision to the United States Court of Appeals for the Fifth Circuit, in New Orleans. In fact, Republican politicians in Jackson have effectively pledged a blank check to try to defend the law.

“We will all answer to the good Lord one day,” Gov. Phil Bryant wrote on Twitter before he signed the measure into law in March. “I will say in this instance, ‘I fought for the lives of innocent babies, even under threat of legal action.'”

More from The Washington Post:

A federal judge has blocked a Mississippi law that would have imposed one of the nation’s strictest bans on abortion by outlawing the procedure after six weeks of pregnancy — before many women know they’re pregnant.

U.S. District Judge Carlton Reeves ruled on Friday that the ban, set to become law on July 1, won’t take effect while the lawsuit against it proceeds. Reeves’s decision is similar to his 2018 ruling that declared a 15-week ban unconstitutional.

“Here we go again,” the judge’s pointed order began. “Mississippi has passed another law banning abortions prior to viability. … The parties have been here before. Last spring, plaintiffs successfully challenged Mississippi’s ban on abortion after 15 weeks. The Court ruled that the law was unconstitutional and permanently enjoined its enforcement. The State responded by passing an even more restrictive bill.”

As Reeves weighed arguments in the case on Tuesday, he criticized the state’s lawmakers for doubling down on further restrictions.

“It sure smacks of defiance to this court,” Reeves said.

The legislation, also known as a “heartbeat bill,” prohibits abortions after an ultrasound can detect electric activity from what will become a fetus’ heart, a milestone that could come just six weeks into a pregnancy. The bill sped through the statehouse, and Gov. Phil Bryant (R) signed it in March.

It is now the second six-week ban to be passed and blocked this year. In March, a federal judge in Kentucky halted a similar six-week measure, questioning the law’s constitutionality.

In a statement, Bryant said he was disappointed with the decision and indicated he would direct his attorney general to review it.

“As Governor I’ve pledged to do all I can to protect life,” he wrote. “Time and time again the Legislature and I have done just that.”

Mississippi’s law is part of a nationwide barrage of restrictions, pushed for by religious conservatives and meant to convince the Supreme Court to reconsider its ruling in Roe v. Wade. In most cases, the goal is not a law’s immediate implementation, but the legal challenges and appeals that could pave a path to the high court and its conservative majority.

As the articles above note, this is the second time in less than a year that a Mississippi abortion law has been before Judge Reeves, an Obama appointee who has been on the bench since 2010. Just six months ago, the same Judge issued a ruling striking down the state’s recently passed law that would have banned abortion at 15 weeks. In that ruling, Judge Reeves found that the law was barred by the precedents set
n Roe v. Wade and Planned Parenthood v Casey. and reaffirmed in Whole Women’s Health v. Hellerstadt et al, a case in which a 5-3 Supreme Court struck down a series of Texas laws that were clearly designed to make it difficult for abortion clinics to operate in the state.

Notwithstanding that ruling, it was only a few months later that Mississippi’s legislature came back with a new law that was even more restrictive than the one at issue in November. As noted, this law, if allowed to go into effect, would have banned abortion at the point when a fetal heartbeat is detected, which generally takes place as early as the sixth week of pregnancy. This is well within the first trimester of pregnancy when the majority of abortions take place in the United States. It is all well before even the most optimistic estimate of the point of fetal viability, which is the point at which there is at least a medical possibility that a fetus can survive outside the womb and develop in a normal fashion.

Given the fact that he had already tossed out a law barring abortion after 15 weeks, it’s not at all surprising that the same Judge reached the same conclusion with respect to this law. Indeed, the opinion, which only runs to eight pages and refers back to Judge Reeves’ opinion in the earlier case at several points, is not at all subtle in expressing the Judge’s obvious frustration at having to waste his time with yet another facially unconstitutional abortion law that was clearly not passed into law for a legitimate purpose:

Here we go again. Mississippi has passed another law banning abortions prior to viability. The latest iteration, Senate Bill 2116, bans abortions in Mississippi after a fetal heartbeat is detected, which is as early as 6 weeks

The parties have been here before. Last spring, plaintiffs successfully challenged Mississippi’s ban on abortion after 15 weeks The Court ruled that the law was unconstitutional and permanently enjoined its enforcement.2 The State responded by passing an even more restrictive bill, S.B. 2116.

(…)

This Court previously found the 15-week ban to be an unconstitutional violation of substantive due process because the Supreme Court has repeatedly held that women have the right to choose an abortion prior to viability, and a fetus is not viable at 15 weeks If a fetus is not viable at 15 weeks it is not viable at 6 weeks. The State conceded this point. The State also conceded at oral argument that this Court must follow Supreme Court precedent.15 Under Supreme Court precedent, plaintiffs are substantially likely to succeed on the merits of this claim.

S.B. 2116 threatens immediate harm to women’s rights, especially considering most women do not seek abortion services until after 6 weeks.18 Allowing the law to take effect would force the clinic to stop providing most abortion care. By banning abortions after the detection of a fetal heartbeat, S.B. 2116 prevents a woman’s free choice, which is central to personal dignity and autonomy.

This injury outweighs any interest the State might have in banning abortions after the detection of a fetal heartbeat Any delay in the enforcement of S.B. 2116 will serve the public interest by protecting this established right and the rule of law.

Finally, the Legislature’s passage of S.B. 2116 during the pendency of this litigation compels the Court to make the following observation. If there is no medical evidence to prove that a fetus is viable at 15 weeks or at 6 weeks then a fetus is not viable between 0 and 5 weeks.

That final paragraph is a sign that Judge Reeves is obviously frustrated by the fact that the legislature, faced with his ruling that an abortion ban set at 15 weeks is unconstitutional responded by passing a bill that cut that period in half. The fact that they would even try to pull such a stunt in the face of the November ruling and the fact that they know that this law is unconstitutional under Roe and its progeny.

In any case, the next step after this ruling would be an appeal to the U.S Court of Appeals for the Fifth Circuit, where I expect that we’ll get a similar ruling from the court given the fact that it too is bound by the precedents set in Roe, Casey, and Hellerstadt. Alternatively, the state could seek to appeal the case directly to the Supreme Court. However it is unlikely that the Justices would grant leave for a direct appeal in a situation such as this and, I think, equally unlikely that they would accept the case for appeal after what I expect will be a ruling similar to the one we got from Judge Reeves from the Fifth Circuit. Much as in the case of the Alabama law, it appears as if Mississippi has overplayed its hand in this case.

Here’s the opinion:

Jackson Women’s Health … by on Scribd