Mississippi Life Law Gets Its Day in Court
October 09, 2019
By Katherine Beck Johnson
Mississippi's 15-week abortion ban was back in court Monday, as a panel of three judges at the Fifth Circuit heard oral arguments regarding the new pro-life law. After Mississippi's Governor, Phil Bryant, signed the law in 2018, it was immediately challenged by Jackson Women's Health Organization. U.S. District Judge Carlton Reeves blocked the law from taking effect, claiming that it violated a woman's right to an abortion prior to fetal viability. Mississippi appealed the decision.
Tony Perkins hosted Mississippi's governor, Phil Bryant, on Washington Watch Tuesday to discuss what happened at the oral arguments. Governor Bryant made it clear that when it comes to the unborn, Mississippi is concerned with more than viability. He said, "... the state has other interests besides the viability of the child.... And one of those is fetal pain." The question of fetal pain was precisely one of the concerns expressed by Fifth Circuit Judge James Ho, appointed by President Trump.
During oral arguments, Judge Ho appeared skeptical that viability should be the only standard considered in the case. He repeatedly asked whether an unborn child experiencing pain could ever be a factor in determining whether an abortion can be legal. Judge Reeves did not consider fetal pain, as he simply struck down the law because it banned abortions prior to viability. Mississippi's attorney argued that the district court should have allowed the state to submit evidence that the unborn child can feel pain at 15 weeks, instead of permanently enjoining the law without diving into the facts. Judge Ho seemed to agree, asking "Why is that not an issue [fetal pain] that should be developed at trial? The tradition in law is that the facts are decided at trial."
In his interview with Tony, Governor Bryant also stressed the importance of having a fair chance of discovering and presenting the facts. He said, "if we are denied discovery, which Judge Reeves has done, it is hard for us to go into a courtroom and prove that fetal pain is real and that it occurs with these poor, innocent children within the mother's womb." Discovery and trial would allow Mississippi the opportunity to present facts that support the state's interest in restricting abortion.
Mississippi's law will test whether the Fifth Circuit views fetal viability as the only factor in analyzing abortion laws, or whether they allow other state interests, such as preventing fetal pain. Paul Barnes, a special assistant attorney general for the state, argued that instead of a "categorical, absolutist approach" on viability, Supreme Court legal precedent allows judges to balance women's interests against a state's interest. Governor Bryant also noted the approach away from strict viability. He said, "we have made some progress in ... developing the case for state's interest in an area other than just viability." Viability has proven to be a difficult standard, as viability can depend on a variety of factors including medical developments. In addition, the age of viability can vary from child to child.
Mississippi's law is only one of a number of recent pro-life bills passed in the states. The Fifth Circuit includes Texas, Louisiana, and Mississippi, which are some of the most pro-life states. Its ruling will not only have a large impact on this law, but other pro-life laws nationwide. If the Fifth Circuit upholds Mississippi's law, it could allow states to enact more pro-life laws protecting women and unborn children.