A Federal District Court Judge in Mississippi has issued an injunction barring enforcement of that state’s restrictive law barring abortions after fifteen weeks:
ATLANTA — In an often-biting opinion, a federal judge on Tuesday blocked a Mississippi law that sought to forbid most abortions after 15 weeks of pregnancy.
Judge Carlton W. Reeves of Federal District Court in Jackson, the Mississippi capital, wrote that the law “disregards” the 14th Amendment’s promise of due process and defied the United States Supreme Court’s existing precedents on abortion rights.
“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. “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 the Legislature’s “professed interest in ‘women’s health’ is pure gaslighting” and that Mississippi officials challenge abortion rights but “choose not to lift a finger to address the tragedies lurking on the other side of the delivery room: our alarming infant and maternal mortality rates.”
Judge Reeves, who cited evidence that viability begins at between 23 and 24 weeks, issued his decision about eight months after the Republican-dominated Mississippi state government enacted the law, which banned abortions if “the probable gestational age of the unborn human” was determined to be more than 15 weeks. The statute included narrow exceptions for medical emergencies or “a severe fetal abnormality.”
The law drew a same-day court challenge by the Jackson Women’s Health Organization, the state’s only provider of abortion services, and Judge Reeves responded almost as quickly with an order that barred the law from being enforced. It was not until Tuesday, though, that he issued a permanent injunction and described the law as “a facially unconstitutional ban on abortions prior to viability.”
But Judge Reeves, who was appointed to the bench by President Barack Obama, said the law may have been the foundation of a “deliberate effort” by Mississippi politicians to overturn Roe v. Wade, which recognized a nationwide right to an abortion.
“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,” Judge Reeves wrote. “Time will tell. If overturning Roe is the state’s desired result, the state will have to seek that relief from a higher court. For now, the United States Supreme Court has spoken.”
This move comes roughly eight months after Mississippi passed what was clearly one of the most restrictive laws regulating abortion rights since the Supreme Court handed down its decision in Roe v. Wade forty-five years ago. Previously, most states had tried to ban or severely restrict abortion rights at roughly the 20th week of pregnancy, or roughly around the same time that a fetal heartbeat could be detected. Each of these laws was eventually struck down by the Federal Courts, as were other efforts to attack abortion rights such as the law passed by Texas purporting to regulate abortion clinics in the same manner they do hospitals and other medical facilities, the result of which was to effectively shut down most of the clinics in the state. This law was eventually struck down by the U.S. Supreme Court in a 2016 decision that reaffirmed both Roe and Planned Parenthood v. Casey, the 1989 case that had been the most recent challenge to the central holding in Roe. As it stands, none of the cases dealing with the 20-week ban or the fetal heartbeat issue have made their way to the Supreme Court. In any case, the Mississippi was immediately challenged and a Judge issued an injunction was put in place barring enforcement of the law pending resolution of the case. That is the case that is the subject of this week’s ruling.
The Texas ruling in 2016 is significant precisely because it reaffirmed not only the decision in Casey but also the central logic of Roe itself and the question of when and how the state can restrict a woman’s ability to have access to an abortion. This arguably sends the signal that the forty-three-year-old precedent in Roe is unlikely to be kicked to the curb by this Court or, depending on the election results, any Court in the foreseeable future. Indeed, thanks to concepts such as stare decisis the longer Roe remains good law the less likely it is that the Court will overturn the cases central holding and return the nation to the status quo that existed prior to January 1973. Obviously, Mississippi’s legislators and Governor either did not get that message or are deliberately ignoring it.
The most likely explanation, of course, is that they are fully conscious of the fact that this new law is a direct challenge to existing case law on abortion that is clearly designed to test the Supreme Court’s ruling in Roe and the cases that followed. As with the other state laws that I note above, it seems clearly designed to provoke a court challenge that advocates hope would lead to Roe being overturned or severely restricted in its applicability in a manner that makes it far easier for states to restrict abortion rights. This, of course, is what makes the recent confirmation of Brett Kavanaugh to the Supreme Court significant. While he was a conservative, Justice Kennedy, who Kavanaugh replaced on the high court, was also a Justice who reognize the importance of precedent and the reliance that millions of Americans have placed on a precedent that now stretches back more than four decades. Laws like the one passed in Mississippi are clearly intended to challenge the central decision in Roe, and to open the door to more restrictions on abortion at the state level. Whether they will succeed will depend in large part how the Federal Courts deal with this law and other similar laws that have been passed across the country.
Here’s the opinion:
Jackson Women's Health … by on Scribd
