Mississippi defends 15-week abortion ban in appeals court

A federal court that rejected Mississippi's 15-week abortion ban should have let the state present evidence about whether a fetus experiences pain, an attorney for the state argued Monday.

Posted: Oct 7, 2019 5:48 PM

NEW ORLEANS (AP) — A federal court that rejected Mississippi's 15-week abortion ban should have let the state present evidence about whether a fetus experiences pain, an attorney for the state argued Monday.

But a lawyer for Mississippi's only abortion clinic said the Supreme Court has been clear that a woman has a right to have an abortion before the fetus is viable.

The arguments came during a hearing at the 5th U.S. Circuit Court of Appeals on a Mississippi law that would ban most abortions after 15 weeks of pregnancy. It's one of many laws pushed by conservative states in recent years, aimed at trying to persuade the increasingly conservative Supreme Court to further restrict the amount of time when abortion is legally available, or even to overturn the 1973 Roe v. Wade decision.

That decision said women have the right to terminate pregnancies until viability, when a fetus can survive outside the womb.

After Republican Gov. Phil Bryant signed Mississippi's law in 2018, the Jackson Women's Health Organization immediately sued. U.S. District Judge Carlton Reeves blocked the law from taking effect, writing that it "unequivocally" violates women's constitutional rights because it bans abortion weeks before viability.

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.

Mississippi and its supporters appealed to the 5th Circuit. Mississippi contends that Reeves overstepped his authority by only considering the case through the prism of viability.

"From that point on the outcome of this case was preordained," Paul Barnes, a special assistant attorney general, told the three-judge panel.

Barnes also suggested the 15-week standard had little effect on the Jackson clinic because they already refuse to perform abortions after 16 weeks.

"It is a prohibition for one week," Barnes said.

Hillary Schneller, a lawyer from the Center for Reproductive Rights which is representing the clinic, argued that the Supreme Court has been clear through decades of case law about a woman's right to an abortion before fetal viability.

"There is no dispute that 15 weeks is well before viability," she said.

At least one of the 5th Circuit judges seemed skeptical that viability should be the only standard. James C. Ho repeatedly asked whether a fetus feeling pain could ever be a factor in determining whether an abortion can be carried out. At one point, he asked if pain is "irrelevant."

Ho also questioned why discussion of the fetal pain question wasn't permitted during the lower court's proceedings.

"Where would we get that factual evidence if not at trial?" he asked.

The other justices — Patrick E. Higginbotham and James L. Dennis — asked few or no questions. Ho was nominated by President Donald Trump in 2017, Higginbotham by President Ronald Reagan in 1982 and Dennis by President Bill Clinton in 1995.

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 takes effect only if the appeals court upholds the Mississippi law.

Even as the court fight continues over the 15-week ban, Mississippi lawmakers passed another law this year banning 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 did not reference the 6-week ban.

Mississippi Coronavirus Cases

Data is updated nightly.

Cases: 149940

Reported Deaths: 3779
CountyCasesDeaths
DeSoto10097104
Hinds9984199
Harrison7116110
Jackson6360119
Rankin5588103
Lee509195
Madison4799106
Forrest383186
Jones357688
Lauderdale3496147
Lafayette326051
Washington3179107
Lamar291550
Oktibbeha245462
Bolivar241384
Lowndes237364
Panola222350
Neshoba2206118
Marshall217250
Leflore205590
Pontotoc199928
Monroe198177
Sunflower191655
Lincoln190865
Warren176857
Tate169851
Union167325
Copiah164140
Pike162658
Yazoo156039
Scott154829
Itawamba152935
Pearl River152167
Alcorn151328
Coahoma150543
Simpson148353
Prentiss146230
Adams141950
Grenada140945
Leake134944
Holmes130861
George125524
Tippah125230
Covington123439
Winston122224
Hancock121139
Wayne117923
Marion116646
Attala113034
Tishomingo109442
Chickasaw107632
Newton105629
Tallahatchie97027
Clay91327
Clarke90553
Jasper82822
Stone77014
Walthall76928
Calhoun75513
Montgomery74525
Carroll72415
Lawrence71814
Smith71316
Yalobusha71327
Noxubee71017
Perry67026
Tunica61019
Greene60322
Claiborne58616
Jefferson Davis57017
Amite54014
Humphreys53619
Benton49318
Quitman4927
Webster44314
Kemper43618
Wilkinson39822
Jefferson35211
Franklin3395
Choctaw3357
Sharkey30917
Issaquena1164
Unassigned00

Alabama Coronavirus Cases

Cases: 244993

Reported Deaths: 3572
CountyCasesDeaths
Jefferson32314500
Mobile19859361
Madison13223148
Tuscaloosa13049154
Montgomery12342236
Shelby1031577
Baldwin873398
Lee775766
Morgan662650
Calhoun6301119
Etowah627666
Marshall627255
Houston525638
DeKalb485536
Cullman439442
Limestone425145
St. Clair419555
Lauderdale407854
Elmore406864
Walker3657111
Talladega351454
Jackson320423
Colbert311942
Blount292240
Autauga273542
Franklin252633
Coffee245415
Dale232654
Dallas226232
Chilton223438
Russell22193
Covington218934
Escambia198331
Chambers176850
Tallapoosa176391
Pike158614
Clarke158419
Marion140236
Winston133023
Lawrence127936
Pickens123518
Geneva12218
Marengo121524
Bibb117917
Barbour117310
Butler116541
Randolph102921
Cherokee102224
Hale97031
Clay91924
Fayette91616
Washington91219
Henry8546
Lowndes79929
Monroe78911
Cleburne77214
Macon73722
Crenshaw71130
Bullock69619
Perry6886
Conecuh68414
Lamar6798
Wilcox63518
Sumter58122
Greene42618
Choctaw42213
Coosa3444
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