Fifth Circuit to Consider Mississippi’s Unconstitutional Pre-Viability Abortion Ban

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Analysis Law and Policy

Fifth Circuit to Consider Mississippi’s Unconstitutional Pre-Viability Abortion Ban

Imani Gandy

Will the appeals court use this as yet another chance to go rogue?

On Monday, the Fifth Circuit Court of Appeals will hear oral arguments in a lawsuit challenging Mississippi’s pre-viability abortion ban. The law, known as the Mississippi Gestational Act, bans abortion at 15 weeks’ gestation. It has a narrow exception if there is a severe fetal anomaly, or for medical emergencies that threaten the life of the pregnant person.

The case is a no-brainer—or at least it should be.

Jackson Women’s Health Organization, the last abortion clinic in Mississippi, filed a lawsuit last year in federal court seeking an injunction. U.S. District Court Judge Carlton Reeves obliged the embattled clinic, blocking the law due to the long line of precedent stretching back to Roe v. Wade, which prohibits states from enforcing pre-viability abortion bans.

In a blistering ruling, Reeves laid into the state of Mississippi for enacting a law that was obviously unconstitutional.

Roe is gone. The chaos is just beginning.

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“The Court’s frustration, in part, is that other states have already unsuccessfully litigated the same sort of ban that is before this Court and the State is aware that this type of litigation costs the taxpayers a tremendous amount of money,” Reeves wrote. “No, the real reason we are here is simple. 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.”

“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,” Reeves added.

There is no conceivable reason for the Fifth Circuit Court of Appeals to do anything but affirm Judge Reeves’ ruling.

In case after case, the U.S. Supreme Court has held that pregnant people have the right to make the ultimate decision whether to terminate a pregnancy up until the point of fetal viability.

In Planned Parenthood v. Casey, the Supreme Court described the right to terminate a pregnancy up to the point of fetal viability as “the most central principle of Roe v. Wade.” In Whole Woman’s Health v. Hellerstedt, the Court said “we now use ‘viability’ as the relevant point at which a State may begin limiting women’s access to abortion for reasons unrelated to maternal health.”

And in Colautti v. Franklin, the Supreme Court specifically said that a state may not use weeks of gestation (or fetal weight or any other single factor) to determine when the state has a compelling interest in the life or health of the fetus.

Mississippi conceded during the lower court proceedings that no fetus is viable at 15 weeks. That should have been the end of the lawsuit. It wasn’t. In order to continue defending its farce of a law, attorneys for Mississippi have resorted to pure sophistry. In their estimation, the law—which is called “An Act to be Known as the Gestational Age Act; To Prohibit Abortions After 15 Weeks’ Gestation”—is not a prohibition but rather a regulation. This, despite the fact that “prohibit” is in the law’s very name.

In defense of its law, Mississippi has argued in court documents that the law “does not ‘ban’ pre-viability abortions because it does not prevent Mississippi women from ultimately deciding to have an abortion before viability. Instead, it merely regulates the time period during which the abortions may be performed.”

Get it? Pregnant people in Mississippi—who have a constitutional right to obtain an abortion prior to the point at which the fetus is viable—still can decide to have an abortion before viability, but only during the time period deemed appropriate by the state of Mississippi.

Declaring this to be a “regulation” rather than a ban is utter nonsense.

The state cannot constitutionally regulate abortion to require abortions to take place during a specific time period pre-viability, thus banning abortion during all other time periods. Under Mississippi’s interpretation of the law, it could prohibit abortions on every third Thursday, or when there’s a full moon. After all, it’s not a ban—it’s just a “regulation.”

Mississippi’s claim is bizarre, to be sure, but it is not the first state to try this absurd argument. Arkansas attempted to frame its 12-week ban as a regulation, not a ban on pre-viability abortions. Its attorneys argued in court that abortions are still available during the first 12 weeks (and thereafter if the circumstances fall under the exceptions for rape, incest, or life of the pregnant patient). In other words, a law is not a ban on pre-viability abortions unless it bans all abortions at every point up until fetal viability. But, Arkansas argued, if abortions are available for the first 12 weeks, then the law is obviously not a pre-viability abortion ban. Yes, it hurts my brain too.

In a per curiam opinion, the Eighth Circuit Court of Appeals rejected Arkansas’ argument out of hand.

And that’s what the Fifth Circuit should do. In a world where precedent and constitutional law matter, it should laugh Mississippi out of court. But as we have seen with June Medical Services v. Geein which it upheld a Louisiana law that is literally identical to Texas provisions that the Supreme Court struck down in Whole Woman’s Health v. Hellerstedt—the Fifth Circuit has shown itself to be a friend to the preposterous.

Only time will tell whether the Fifth Circuit will go rogue in the hopes of providing the Supreme Court yet another opportunity to gut Roe v. Wade. Abortion rights advocates may feel some comfort that the panel slated to hear the case includes Circuit Judge James L. Dennis and Judge Patrick Higginbotham, both of whom vigorously dissented from the Fifth Circuit’s rulings upholding the Louisiana law in June Medical Services v. Gee.

The panel also includes James C. Ho, who, in Whole Woman’s Health v. Smith, a lawsuit about Texas’ fetal burial statute, managed to lament the “moral tragedy of abortion” and accuse the senior district court justice who issued an order blocking the statute of anti-religious bias.

As such, I’d put good money on a 2-1 decision, with Higginbotham and Denis ruling that Mississippi’s 15-week ban should remain blocked and Ho issuing a frothy dissent that will make Justice Clarence Thomas proud.