It’s hard to read a single day’s news without encountering a new threat to reproductive rights. To take just one egregious example, Republican legislators in Ohio recently introduced a bill that would abolish abortion in all circumstances, including cases of rape, incest, and a threat to the woman’s life. The fetus would be treated as a person, and women and providers could potentially be punished with life in prison or even the death penalty. This bill might not make it out of the Ohio House of Representatives; it might not be passed by the Senate; and it might not be signed by the current governor or the one who will replace him in January. But it might leap over all of those hurdles and become the strictest abortion law in the nation. Similar bills, maybe one notch less extreme, have become law in several states in recent years.
Extreme anti-abortion measures proposed or passed in recent years have a number of things in common. First, they do not reflect the will of Americans, seven in ten of whom support abortion in all or almost all circumstances. Second, they are unconstitutional. Third, the legislators who support or vote for these bills know both of these things. Catering primarily to their far-right base, Republican legislators are queuing up a seemingly endless list of anti-abortion bills that they hope will provoke a challenge to Roe v. Wade in the Supreme Court. Lower federal courts don’t have the power to revisit or reverse the Supreme Court’s abortion jurisprudence, but they can appeal the predictably adverse rulings until the Supreme Court, now with a very conservative majority, takes the bait. Until that happens, women will find protection from the federal courts. And state taxpayers will continue to pay millions to defend indefensible laws. But when and if the Supreme Court overturns or drastically undermines the right to abortion, these are the laws that will be waiting in the wings, instantly resurrected if the orders that kept them at bay are no longer warranted by the law.
In a recent case, a federal judge in Mississippi permanently enjoined one of these ultra-restrictive laws. In that case, Jackson Women’s Health Organization v. Currier, the court concluded that a ban on abortions after 15 weeks imposed an unconstitutional burden that could not be squared with the applicable caselaw. In response to the question whether this law violates the Fourteenth Amendment, the court concluded that “[i]t does, unequivocally.” This ruling will save, at least for now, the state’s lone abortion clinic.
Mississippi House Bill 1510
In March 2018, the Republican-controlled Mississippi legislature passed HB 1510, the key provision of which provides as follows:
Except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform, induce, or attempt to perform or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.
It is important to understand the terminology that relates to fetal development. Doctors typically describe pregnancies by the number of weeks from the woman’s last menstrual period. This is referred to as “gestational age.” Conception does not occur until about two weeks later, around the time of ovulation. Abortion laws that turn on the stage of pregnancy do not all use the same definition. This law uses the phrase ‘gestational age’ and specifically defines that to refer to the number of weeks since the last menstrual period (lmp). Texas, by way of contrast, has a 20-week ban but the clock does not start until fertilization. In those terms, this Mississippi law would be a complete ban after 13 weeks of pregnancy.
HB 1510 has two narrow exceptions. The first permits abortion in case of medical emergency, which is narrowly defined as a situation in which the woman faces “a serious risk of substantial and irreversible impairment of a major bodily function.” The second exception permits abortion in cases of a “severe fetal abnormality” that means the fetus will never be able to survive outside the womb, regardless of fetal age. Abortions in all other cases after 15 weeks of gestation shall result in the suspension or revocation of the doctor’s medical license, as well as additional civil penalties or fines.
On the day the governor signed HB 1510 into law, Jackson Women’s Health Organization, the state’s lone abortion clinic, and one of its providers filed suit challenging the ban and requesting a temporary restraining order (TRO). The court entered an immediate TRO. The case was then separated into different parts, and the challenge to the 15-week ban continued on its own. The plaintiffs filed a motion for summary judgment in August, which the court granted in the recent ruling and which triggered the permanent injunction on enforcement.
The Supreme Court’s Abortion Precedents
In 1973, the Supreme Court held in Roe v. Wade that women had a constitutional right to terminate a pregnancy before a certain point. The right was situated within the right to privacy, protected by the Fourteenth Amendment’s Due Process Clause. The majority opinion, written by Justice Blackmun embraced the trimester framework, under which states could not regulate abortion during the first trimester; could regulate it only to preserve the mother’s health during the second; and could regulate or restrict it completely, unless abortion was necessary to save the life or health of the woman, during the third trimester because its interest in protecting fetal life becomes compelling when the fetus reaches the point of viability—that is, the point when the fetus could survive outside the womb. The Court rejected the idea that the fetus is a person with independent constitutional rights. This ruling had the obvious effect of invalidating a large number of laws banning or restrictively regulating abortion—or preventing those laws from being applied to certain situations.
After two decades of backlash and maneuvering by the anti-abortion movement (including at least one murder of an abortion provider and significant violence of other types), the Court revisited Roe in Planned Parenthood v. Casey (1992). States, including Pennsylvania, had begun successfully passing restrictive abortion laws that were deliberately in tension with, if not outright inconsistent with, Roe. As we are seeing in 2018, conservative voters and legislators hoped that a newly composed Supreme Court would simply overturn the ruling in Roe—and return the issue of abortion to the states, many of which would have chosen to criminalize all or virtually all abortions.
At issue in that case was the validity of several restrictions contained in the Pennsylvania Abortion Control Act. But the Supreme Court did not take the bait. Instead, the Court reaffirmed the basic principle in Roe that women have a constitutional right to terminate a pregnancy within certain constraints. A three-judge plurality issued a joint opinion that spoke strongly of the importance of stare decisis—a legal concept that protects reliance by hesitating to overturn settled law. The Court did use Casey as an opportunity to revisit and revise the trimester framework adopted in Roe, but it fundamentally reaffirmed the constitutional right of abortion.
Under the standard announced in Casey, the state’s interest in protecting fetal life attaches at the outset, rather than only when the fetus reaches viability. Before viability, the state can regulate abortion as long as it does not impose an undue burden on a woman’s right to terminate a pregnancy. After viability, the state can restrict abortion entirely as long as it maintains an exception to preserve the life or health of the mother. Applying the new standard, the Court upheld provisions of the law mandating pre-abortion counseling and a waiting period, as well as a provision requiring parental consent for minors (with a judicial bypass option), but struck down a provision requiring married women to notify their husbands before obtaining an abortion.
Unconstitutionality of HB 1510 Under Roe and Casey
The court in Currier began by quoting Casey’s distinction between pre-viability and post-viability abortions. “Before viability,” the Supreme Court wrote, “the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.” Indeed, the Court continued, “viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.”
The question asked by the court in Currier was simple: “Is the 15-week mark before or after viability?” The court concedes that viability is not the same for every pregnancy, but notes the “established medical consensus” that viability usually begins between 23 and 24 weeks after a woman’s last menstrual period. That is 8-9 weeks after this strict ban would take hold. The court noted that Mississippi’s own department of health had taken the position that a 15-week fetus has “no chance of survival outside of the womb” and conceded in litigation that it could not find any “medical research or data” to support a claim of viability. In other words, the state passed a bill that it admits it cannot defend under current law.
The impact of the law is striking. The state’s only abortion clinic cannot provide care to certain patients without risking loss of a medical license and other penalties. Although the vast majority of abortions occur during the first trimester (and thus before 13 weeks or so), some are later. The doctor-plaintiff in Mississippi testified that she provides a post 15-week abortion at least once per week. Those patients would either be forced to carry the pregnancy to term or leave the state to seek abortion care.
The court quickly and simply concluded:
“The record is clear. States may not ban abortions prior to viability; 15 weeks lmp is prior to viability; and plaintiffs provide abortion services to Mississippi residents after 15 weeks lmp. As the facts establish, the Act is unlawful.”
The court continued by asking an important question: “So, why are we here?” The State of Mississippi took the position that every court ruling on abortion restrictions has gotten the holding and effect of Casey wrong. The state in this case argued that the complete ban was in fact only a “regulation” that furthers its interest in protecting women’s health and does not place an undue burden on a woman’s right to choose. But, as the court noted, the “State is wrong on the law.” The plurality in Casey noted that the “State has legitimate interests from the outset of pregnancy in protecting the health of the woman and the life of the fetus that may become a child,” and may therefore regulate abortion in pursuit of those interests. But those regulations cannot impose an undue burden on a woman’s right to seek a pre-viability abortion. HB 1510 does not present a question of undue burden. It forbids some pre-viability abortions, rather than regulating the circumstances under which they may take place. As the Currier court concluded, “[t]here is no legitimate state interest strong enough, prior to viability, to justify a ban on abortions.” The very name of HB 1510 includes the phrase “to Prohibit Abortions After 15 Weeks’ Gestation.”
Other federal courts have reached the same conclusion about similar bans. The Eighth Circuit struck down Arkansas’s ban on abortions after 12 weeks, in Edwards v. Beck. The Fifth Circuit invalidated Louisiana’s abortion ban in Sojourner T. v. Edwards. The Supreme Court has reaffirmed the Casey principle in later cases, including in Gonzales v. Carhart, in which it noted that before viability, a state “may not prohibit any woman from making the ultimate decision to terminate her pregnancy.”
The State of Mississippi also argued that the court should ignore Casey altogether and based its decision based on “fetal pain.” But, as the court noted in response, there is no basis for taking this approach given the Supreme Court’s precedents on abortion.
There was simply no way for the State of Mississippi to defend this law—and the State of Mississippi knew that. In the court’s words, 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 state was “aware that this type of litigation costs the taxpayers a tremendous amount of money” and that courts had resoundingly invalidated similar bans in other states. But a federal district court was not the right audience for these expensive shenanigans. “This Court follow the commands of the Supreme Court and the dictates of the United States Constitution, rather than the disingenuous calculations of the Mississippi Legislature.”
As long as lower federal courts continue to apply the relevant precedents in good faith, most of the recently passed anti-abortion legislation across the country will be held invalid. Texas has funded litigation in defense of a wide variety of unconstitutional abortion restrictions (examples are here, here, and here). There is to be no end of these laws and these challenges unless and until the Supreme Court either reaffirms the Roe/Casey standard or jettisons it. The consequences of the latter would be disastrous for women.