Mississippi asks US Supreme Court to solve circuit court split with 15 week abortion case

CNA Staff, Oct 23, 2020 / 13:01 pm

The Mississippi Attorney General on Thursday urged the US Supreme Court to hear a case regarding the state's ban on most abortions from 15 weeks into pregnancy, citing a circuit split over a question raised in the suit.

Lynn Fitch submitted a brief petitioning for writ of certiorari in Dobbs v. Jackson Women's Health Organization Oct. 22.

"The circuit split...continues to grow," she wrote, over the question "whether the validity of a pre-viability law that protects women's health, the dignity of unborn children, and the integrity of the medical profession and society should be analyzed under Casey's 'undue burden' standard or Hellerstedt's balancing of benefits and burdens."

"This case remains an ideal vehicle to promptly resolve both that question and the first question presented-the contradictions in this Court's decisions over use of 'viability' as a bright line for measuring pro-life legislation," Fitch stated.

Fitch noted that in a recent case, a panel of the Fifth Circuit acknowledged that its decision conflicted with one reached by the Eighth Circuit, and that the Sixth Circuit has "reached the exact opposite conclusion as the Fifth Circuit panel majority."

The circuit split arises from differences in interpretation of the Supreme Court's June decision in June Medical Services, LLC v. Russo, which struck down Louisiana's requirement that abortion doctors have admitting privileges at a nearby hospital.

In December 2019 Judge Patrick Higginbotham of the US Court of Appeals for the Fifth Circuit upheld a district court ruling that blocked Mississippi's 15 week abortion ban.

The law allows abortions after 15 weeks of pregnancy when the mother's life or a major bodily function is in danger, or when the unborn child has a severe abnormality and is not expected to be able to live outside the womb at full term. Exceptions are not granted for pregnancies resulting from rape or incest. Physicians who knowingly violate the law can lose their state medical license.

Defending the law, Mississippi's attorneys have argued that it has an interest in protecting the life of the unborn, as well as maternal health. They pointed to an increased risk of complications for the mother when abortion is performed further into the pregnancy. They have also made a case that unborn babies are capable of feeling pain prior to viability.

Higginbotham wrote that "In an unbroken line dating to Roe v. Wade, the Supreme Court's abortion cases have established (and affirmed, and re-affirmed) a woman's right to choose an abortion before viability. States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman's right but they may not ban abortions."

In July, Governor Tate Reeves signed into law the Life Equality Act, banning abortion based on sex, race, or genetic abnormality.