Last week, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit heard oral arguments regarding Mississippi’s pre-viability abortion ban. Despite the fact that the state’s attorney, Mississippi Special Assistant Attorney General Paul Barnes, conceded no fetus is viable at 15 weeks, he defended the law banning abortion at 15 weeks, arguing that the district court made a mistake by refusing to allow Mississippi to present evidence related to fetal pain. According to Barnes, whether or not a fetus can feel pain at 15 weeks’ gestation is relevant to an inquiry about a pre-viability abortion ban.
But it isn’t. Or at least it shouldn’t be.
As Hillary Schneller, the plaintiffs’ attorney from the Center for Reproductive Rights, pointed out, “[t]he district court was within its broad discretion not to consider facts that are irrelevant under governing law,” which says that states cannot ban abortion prior to viability.
But questions from Trump appointee Judge James C. Ho indicate that when it comes to abortion, he is willing to disregard governing law if the result is an end to the “moral tragedy of abortion”—as he described it in another abortion rights case involving Texas’ fetal burial statute.
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The case at hand is a simple one: The Jackson Women’s Health Organization, Mississippi’s last remaining clinic, filed a lawsuit last year challenging the Mississippi Gestational Age Act (HB 1510), which bans abortion after 15 weeks’ gestation. In March 2018, U.S. District Court Judge Carlton Reeves quickly issued a temporary restraining order blocking the law. “The [U.S.] Supreme Court says every woman has a constitutional right to ‘personal privacy’ regarding her body. That right protects her choice ‘to have an abortion before viability,’” Reeves wrote, citing the landmark abortion rights cases Roe v. Wade and Planned Parenthood v. Casey.
Then in November 2018, Reeves issued a ruling that permanently blocked Mississippi from enforcing HB 1510, writing that “[t]he record is clear: States may not ban abortion 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.”
Mississippi nevertheless pressed on with an appeal. Barnes argued before the three-judge panel on October 7 that Judge Reeves should have applied the Casey undue burden test but instead applied a “categorical absolutist approach” that ignored special circumstances.
The special circumstances? Supposed “new evidence” regarding fetal pain. Barnes insisted that Judge Reeves should have allowed Mississippi to present evidence regarding whether fetuses can feel pain at 15 weeks’ gestation, citing the Court’s ruling in Gonzales v. Carhart. In Carhart, the Supreme Court upheld a law banning so-called partial-birth abortions, an anti-choice term used to describe a particular second-trimester abortion procedure. According to Barnes, that decision demonstrates the Court doesn’t take a hardline approach when it comes to laws that prohibit abortion.
“The Court [in Gonzales] expressly endorsed the findings of Congress that there were special, moral, and ethical concerns raised by partial-birth abortion that justified a prohibition,” Barnes said. Barnes made this argument in order to try and fit the 15-week ban into the Gonzales framework: If partial-birth abortion presents special moral and ethical concerns, then so does supposed new evidence that fetuses can feel pain at 15 weeks. And in Barnes’ estimation, supposed “new evidence” regarding fetal pain would justify Mississippi’s ban and is relevant to a decision on it.
But research on whether a fetus can feel pain at 15 weeks is irrelevant. Barnes’ argument conflates the Partial-Birth Abortion Act of 2003 at issue in Gonzales with Mississippi’s pre-viability abortion ban. However, one bans a particular abortion procedure while the other bans abortion entirely. The former is an abortion regulation on the kind of abortion procedures that the law permits; the latter is an outright ban.
Barnes tried to play fast and loose with the definition of the word “ban,” arguing that a partial ban is not the same as a total ban. In other words, as long as abortion is permitted at some point during the pregnancy—in the case of Mississippi, up to 15 weeks—then the ban is not truly a ban. When pressed by a judge on the panel, Barnes admitted that the 15-week ban was actually a ban, but then claimed that it was a ban for only one week. Because the plaintiff clinic, the Jackson Women’s Health Organization, does not perform abortions after 16 weeks, the law really only bans abortion for one week, Barnes argued.
This is, of course, preposterous. The Supreme Court in Casey said “viability marks the earliest point at which a State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.” That means no ban prior to viability. And since Mississippi conceded that no fetus is viable at 15 weeks, that should have been the end of the conversation.
Barnes also claimed that the district court improperly failed to apply the undue burden test, set forth in Casey, to Mississippi’s pre-viability abortion ban. But as the plaintiffs’ attorney has argued, the Supreme Court in Casey developed the undue burden analysis to determine whether the regulations at issue in the case presented a substantial obstacle to a pregnant person obtaining an abortion, and whether that substantial obstacle constituted an undue burden. If it did, the regulation was unconstitutional. Casey didn’t involve a ban.
And, again, the Court in Casey said there could be no bans prior to viability. So it doesn’t make any sense to apply an undue burden test to a pre-viability abortion ban because pre-viability abortion bans are categorically unconstitutional. In other words, the Court has already decided that a pre-viability ban is an undue burden. No further analysis necessary.
But Trump appointee James C. Ho seemed amenable to the argument that the lower court should have considered evidence regarding fetal pain. Ho asked Schneller, the plaintiffs’ attorney, whether fetal pain is “irrelevant.” “Hypothetically, in a future world, imagine a consensus amongst doctors and scientists that babies can feel pain at week 15. What do we do with that kind of evidence?” he asked her. Ho further questioned whether the existence of fetal pain at 15 weeks was an issue that should have been explored during trial.
Schneller responded that the state could pursue its interest through certain regulations of abortion, but that it cannot pursue those interests by directly prohibiting a pregnant person from making this choice before viability.
“Under governing law, the Supreme Court has said viability is the only issue that matters as to a prohibition,” Schneller said.
Ho also seemed amenable to Barnes’ argument that “new evidence” regarding fetal pain represents a changed circumstance that warrants revisiting viability as a bright line rule. “What do you do with the language in Casey—‘no changes of fact have rendered viability more or less appropriate as the point at which the balance of interest tips.’ Doesn’t that raise the potential that some day there would be changes of fact that would render viability no longer appropriate?” Ho asked Schneller.
“The Supreme Court has been clear that before viability, the state’s interests aren’t strong enough to support a prohibition,” Schneller responded.
Schneller is absolutely correct. The case law is clear and has been since 1973, when Justice Harry Blackmun, writing for the majority in Roe v. Wade, said the following:
With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.
But in exploring the possibility that fetal pain is relevant to a decision about the constitutionality of Mississippi’s 15-week ban, Ho cited a dissent that Justice Blackmun penned in the 1989 case Webster v. Reproductive Health Services. That case related to Missouri abortion restrictions that, among other things, banned the use of public funding, facilities, and employees for abortion not necessary to save the life of the pregnant person.
Quoting Blackmun’s mixed opinion in Webster (in which Blackmun partially concurred and partially dissented), Ho said, “I should think it obvious that the State’s interest in the protection of an embryo—even if that interest is defined as ‘protecting those who will be citizens’… —increases progressively and dramatically as the organism’s capacity to feel pain increases day by day.”
But in his opinion in Webster, Blackmun said he remains convinced that “the viability standard in particular, fairly, sensibly, and effectively functions to safeguard the constitutional liberties of pregnant women while recognizing and accommodating the State’s interest in potential human life.”
Blackmun further argued that “[t]he viability line reflects the biological facts and truths of fetal development; it marks the threshold moment prior to which a fetus cannot survive separate from the woman and cannot reasonably and objectively be regarded as a subject of rights or interests distinct from, or paramount to, those of the pregnant woman.”
As apparent from his opinions in Roe and in Webster, Blackmun favored the viability line, thus undermining any intimation by Ho that Blackmun would have favored banning abortion prior to fetal viability, as Mississippi has done.
Ho seems not to favor the viability line—or at least he suggested that changed circumstances and new evidence regarding fetal pain should be considered. He also appears willing to require an entirely irrelevant inquiry into fetal pain even though no such inquiry is warranted when deciding whether a pre-viability abortion ban is constitutional.
As Schneller noted, “The Supreme Court has decided that the line is at viability—the point at which the fetus has a reasonable likelihood of sustaining survival independent of the woman. At that point, the state may prohibit abortion. Before that point, none of these interests are strong enough to prevent her from making that decision.”
While Ho peppered counsel with questions, the other two judges on the panel—Circuit Judge James L. Denis (a Clinton appointee) and Judge Patrick Higginbotham (a Reagan appointee), both of whom vigorously dissented from the Fifth Circuit’s rulings in June Medical Services v. Gee, which permitted Louisiana’s admitting privileges law to go into effect—were relatively quiet. As I previously wrote, given Denis and Higginbotham’s rulings in Gee, both are expected to rule against Mississippi, but we won’t know for sure for several weeks.