Mississippi Fights to Revive Abortion Law in Fifth Circuit

NEW ORLEANS (CN) – The Fifth Circuit heard arguments Monday over a Mississippi law that would ban most abortions after 15 weeks of pregnancy, as the three-judge panel was asked to overturn an order striking down the law.

Fifth Circuit Court of Appeals Great Hall.

Republican Governor Phil Bryant signed the law in March 2018 but it never went into effect because the state’s only remaining abortion clinic immediately sued, prompting U.S. District Judge Carlton Reeves to temporarily block the law.

Reeves, a Barack Obama appointee, later struck the law down altogether, writing that it “unequivocally” violates women’s constitutional rights by banning abortion weeks before viability.

The state of Mississippi, represented by Paul Eldridge Barnes, was joined in its Fifth Circuit arguments Monday by Beth Ellen Klusmann, an attorney for the state of Louisiana. Both the Bayou State and Texas have joined Mississippi in the case.

Louisiana passed a 15-week abortion ban in 2018 that would only go into effect if the Mississippi law is allowed by the New Orleans-based appeals court.

Klusmann told the judges the abortion law should stand and opened her arguments by asking whether “it matters if an unborn child feels pain when she is aborted.”

This concern, Klusmann said, is important enough to override decades of precedent established by the 1973 Supreme Court ruling in Roe vs. Wade, which said women have the right to terminate a pregnancy until viability, when a fetus can survive outside the womb.

In his ruling, Reeves wrote that only a trained medical professional can determine viability but that it typically begins at 23 or 24 weeks.

The clinic suing Mississippi over the law, the Jackson Women’s Health Organization, told the Associated Press it performs abortions through 16 weeks.

Attorneys for Louisiana and Mississippi declined to comment after the Fifth Circuit hearing.

Hillary Schneller from the Center for Reproductive Rights, who argued on behalf of the clinic, said during an interview after the hearing that “medical evidence is to the contrary” of the state’s claim that fetuses feel pain after 15 weeks of gestation.

Schneller pointed to an amicus brief filed by the Society for Maternal Fetal Medicine that refutes the claim.

“The law and the facts are on our side,” she said. “This is really straightforward.”

Schneller said that just like a six-week abortion ban that was also struck down by Reeves, Mississippi’s 15-week ban flies “in the face of Supreme Court precedent” that protects women’s autonomy and dignity by preserving her right to choose the fate of a fetus before it would be possible for it to live on its own.

“That is not for the state to decide,” Schneller said.

The Center for Reproductive Rights said Mississippi was ordered in February to pay the center $755,274 after the state lost a case over hospital admission requirements for abortion providers.

“I think it’s worth pointing out the amount of taxpayer dollars Mississippi is spending to defend laws that openly violate Supreme Court precedent,” a spokesperson for the group said.

The Fifth Circuit panel was comprised of Senior U.S. Circuit Judge Patrick E. Higginbotham, an appointee of Ronald Reagan; U.S. Circuit Judge James L. Dennis, a Bill Clinton appointee; and U.S. Circuit Judge James C. Ho, who was appointed by President Donald Trump.

The judges did not indicate when they will rule.

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