Mississippi Court Halts Enforcement of New Abortion Law

Mississippi Court Halts Enforcement of New Abortion Law

Legal Sidebari

Mississippi Court Halts Enforcement of New
Abortion Law
April 10, 2018
A federal district court in Mississippi has halted the enforcement of a new state law that prohibits the
performance of an abortion once the gestational age of the fetus is greater than 15 weeks. While other
states have enacted similar abortion restrictions, Mississippi is unique in prohibiting the procedure at such
an early gestational age. Among the 25 states to adopt restrictions, most have generally limited the
procedure once the post-fertilization age of the fetus is 20 or 24 weeks. Notably, state laws in Arizona and
Idaho that prohibited abortions once the fetus reached a gestational age of 20 weeks were invalidated
because they were found to be in conflict with Supreme Court precedent. An Arkansas law that prohibited
abortions once the fetus had a detectable heartbeat and was at least a gestational age of 12 weeks was
invalidated on the same grounds. Because similar abortion legislation has been introduced at the federal
level, the district court’s further consideration of Mississippi’s Gestational Age Act (GAA) is likely to be
of interest to Congress.
Under the GAA, a physician who intentionally or knowingly performs an abortion in violation of the
law’s restrictions will have his or her medical license suspended or revoked. The GAA’s restrictions do
not apply when there is a life-endangering medical emergency, if continuation of a pregnancy would
create a serious risk of substantial and irreversible impairment of a major bodily function, or in the case of
a severe fetal abnormality. Enactment of the GAA followed the Mississippi legislature’s determination
that abortion “carries significant physical and psychological risks to the maternal patient, and these
physical and psychological risks increase with gestational age.”
Whether the GAA is permanently enjoined remains to be seen. In issuing its temporary restraining order,
the district court identified the Supreme Court’s abortion jurisprudence and emphasized that a state cannot
prohibit a woman from having an abortion before fetal viability, the point in a fetus’s development when
it is able to live outside the mother’s womb, with or without artificial aid. In Roe v. Wade, the Court
indicated that viability usually occurs at 28 weeks, but may occur as early as 24 weeks.
A review of the Court’s abortion jurisprudence and recent decisions by two federal appellate courts would
seem to suggest that the GAA might have difficulty surviving a constitutional challenge. The Court has
continually emphasized that viability is the earliest point at which a state’s interest in fetal life may justify
a ban on abortions. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court maintained
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that a state “may not prohibit any woman from making the ultimate decision to terminate her pregnancy
before viability.” This principle was later recognized as controlling by the Court in Gonzales v. Carhart.
More recently, in light of the Court’s decisions, the U.S. Court of Appeals for the Eighth Circuit (Eighth
Circuit) and the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) invalidated laws from
Arizona, Arkansas, and Idaho that sought to prohibit the performance of an abortion at gestational ages
younger than 24 weeks.
In Isaacson v. Horne, the Ninth Circuit concluded that Arizona’s 20-week abortion restriction was
unconstitutional “under an unbroken stream of Supreme Court authority, beginning with Roe and ending
with Gonzales.” The appellate court reversed a district court decision that upheld the state law, in part, on
the grounds that it regulated rather than prohibited abortions at 20 weeks. The district court maintained
that the Arizona law simply imposed a time limitation on when a woman could seek an abortion and that
it was not a complete ban on pre-viability abortions because of an exception for medical emergencies.
Citing the Supreme Court’s abortion decisions, however, the Ninth Circuit emphasized that a state may
not prohibit the performance of abortion prior to viability. Unlike the district court, the Ninth Circuit
contended: “[t]here is no . . . doubt that the twenty-week law operates as a ban on pre-viability
abortion[.]” Moreover, the appellate court indicated that the presence of a medical emergency exception
does not make an otherwise impermissible restriction constitutional.
In McCormack v. Herzog, the Ninth Circuit considered the constitutionality of Idaho’s Pain-Capable
Unborn Child Protection Act, which prohibited abortions once the fetus reached a gestational age of 20
weeks. The Idaho ban applied regardless of whether the fetus attained viability. While the court
acknowledged that a state could act to protect the health and safety of a woman seeking an abortion, it
maintained that the state may not restrict a woman’s ability to have an abortion before viability. In
evaluating the Idaho law, the court explained:
[T]he broader effect of the statute is a categorical ban on all actions between twenty weeks
gestational age and viability. This is directly contrary to the Court’s central holding in Casey that a
woman has the right to “choose to have an abortion before viability and to obtain it without undue
interference from the State.”
Ultimately, the Ninth Circuit concluded that the Idaho law was unconstitutional.
In Edwards v. Beck, the Eighth Circuit examined the Arkansas Human Heartbeat Protection Act, which
prohibited abortions once the fetus had a detectable heartbeat and was at least a gestational age of 12
weeks. The Arkansas State Medical Board attempted to defend the law by characterizing the restriction as
a regulation and not a ban on pre-viability abortions. It emphasized that abortions remained available for
the first 12 weeks of a woman’s pregnancy, and the law included exceptions to protect the mother’s life
and for medical emergencies. Like the Ninth Circuit, however, the Eighth Circuit viewed the law as an
impermissible ban on abortions prior to viability. The Eighth Circuit maintained that it was bound by
Casey and the assumption of Casey’s “principles” in Gonzales, noting that “[b]y banning abortions after
12 weeks’ gestation, the Act prohibits women from making the ultimate decision to terminate a pregnancy
at a point before viability.”
Congress, which has considered similar legislation to restrict abortions, will likely follow the GAA as it
proceeds through the courts. The Pain-Capable Unborn Child Protection Act (PCUCPA), which would
prohibit the performance or attempted performance of an abortion if the probable post-fertilization age of
the fetus is 20 weeks or greater, has been passed by the House of Representatives during the last three
Congresses. H.R. 36, the current version of the PCUCPA, was passed by the House on October 3, 2017.
In January, a vote to end debate on S. 2311, the Senate’s version of the PCUCPA, fell short of the 60
votes needed for a final floor vote.

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Although the PCUCPA would restrict abortions at a later gestational age than what is prescribed by the
GAA, it would likely be examined in a similar fashion, if challenged. A reviewing court would probably
review the measure in accordance with Roe and Casey, with the decisions of the Eighth and Ninth
Circuits providing additional guidance for the court. In Mississippi, the temporary restraining order
against the GAA’s enforcement has been extended to April 13, 2018. Nevertheless, the district court is
expected to decide soon whether to further enjoin the enforcement of the GAA and whether that relief
should be consolidated with a trial on the merits.

Author Information

Jon O. Shimabukuro

Legislative Attorney

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