Federal appellate judges in New Orleans on Monday heard arguments on whether Mississippi can prohibit most abortions after 15 weeks — a case that could decide the fate of a similar law in Louisiana.
Mississippi’s legislature passed the controversial new restrictions last year, but a federal district judge halted the law from going into effect and ultimately struck it down in November as unconstitutional.
An attorney for Mississippi told a three-judge panel of the 5th U.S. Circuit Court of Appeals that research on fetal pain perception gave the state a compelling interest in limiting abortion rights. But a lawyer representing Mississippi’s only abortion clinic said the law would upend U.S. Supreme Court rulings protecting a woman’s right to an abortion before the fetus is viable outside the womb.
Louisiana and Texas have both sided with Mississippi, submitting briefs that echoed Mississippi’s arguments. Louisiana passed a ban on most abortions after 15 weeks last year, but it will go into effect only if Mississippi’s law is upheld.
A President Donald Trump appointee, Judge James Ho, dominated the questioning Monday on a panel that also included Judges Patrick Higginbotham and James Dennis. The judges did not give a timeline for issuing a decision.
Ho repeatedly questioned why U.S. District Judge Carlton Reeves declined to consider Mississippi’s arguments about fetal pain perception.
“The Supreme Court has been clear that before viability, all of these things are for a woman to consider,” said Hillary Schneller, of the Center for Reproductive Rights, which is representing the clinic.
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However, Ho lingered on the possibility that the law on abortion could change, given scientific developments since the Supreme Court’s previous landmark decisions on abortion in 1973 and 1992.
Mississippi claims fetuses have developed the neural structures to experience pain well before viability. Abortion rights advocates contest that claim and say it shouldn’t be considered by the courts at all.
The issue of fetal pain perception has been employed in recent years by anti-abortion groups as an argument for abortion restrictions earlier in pregnancy.
The science is complicated, though most scientific researchers place the earliest potential for pain sensation by a fetus at 23 to 30 weeks, according to a recent review article in the journal Neurology. Some say that pain perception is impossible before birth.
“Why is that not an issue that should be developed at trial?” Ho asked. “The tradition in law is that the facts are decided at trial.”
Ho seemed to suggest that the circuit court could order Reeves to reopen the case.
That position is backed by Mississippi. Paul Barnes, a special assistant attorney general for the state, said Reeves had erred in blocking more evidence about fetal pain perception and maternal health. “From that point on, the outcome of this case was preordained,” Barnes said.
Reeves had called the state’s professed interest in women’s health “pure gaslighting,” citing the state’s high infant and maternal mortality rates.
Barnes said he believed that instead of a “categorical, absolutist approach” on viability, Supreme Court precedent allows judges to balance women’s interests against a state’s.
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Barnes also emphasized that the 15-week ban would have only a limited effect, because only about 90 women sought an abortion after that time period in 2017. The state’s sole clinic, the Jackson Women’s Health Organization, says it does not perform abortions after 16 weeks.
No matter which side wins, the case could wind up on appeal to a Supreme Court that has been reshaped by Trump’s appointment of Justices Neil Gorsuch and Brett Kavanaugh.
Mississippi’s 15-week ban is one of several laws passed in conservative states in recent years, as anti-abortion groups try to push the Supreme Court to alter the precedent set by 1973’s Roe v. Wade decision.
The Supreme Court on Friday said it would consider an appeal of a separate Louisiana law that would require abortion providers to have admitting privileges at local hospitals.
Mississippi has also passed a law that bans most abortions after six weeks. That law, which has been blocked from going into effect, is also under court challenge.
Both the 15-week and six-week bans have exceptions for when a woman’s life may be at risk and for severe fetal abnormalities.
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