//  4/22/19  //  Commentary

We recently spearheaded an amicus brief in Jackson Women’s Health Organization v. Dobbs, the case challenging Mississippi’s ban on abortions performed at or after 15 weeks of pregnancy. The case, and similar challenges in other jurisdictions, respond to a wave of state laws that seek to chip away at reproductive rights by ignoring well-established precedents that recognize a woman’s constitutionally protected right to terminate a pregnancy.

As Mississippi concedes, its 15- week ban prohibits a woman from obtaining an abortion during the period prior to fetal viability. The Supreme Court consistently has held in a series of cases that states may not enact bans on abortions that are performed prior to viability. These cases have also affirmed that states may not enact regulations that unduly burden access to abortion prior to viability. Mississippi’s 15-week ban flagrantly flouts these precedents by enacting an outright prohibition on pre-viability abortions.

Mississippi’s arguments in support of the ban underscore just how aggressively states are seeking to undo existing precedent on abortion without explicitly overturning it. For example, Mississippi says that its law “does not ‘ban’ pre-viability abortions because it does not prevent Mississippi women from ultimately deciding to have an abortion before viability. Instead, it merely regulates the time period during which abortions may be performed.”

The argument resists established law, logic, and the fundamentals of the English language. As we explain in our brief, “Under the State’s reasoning, a law that banned abortion at any particular period of a pregnancy term would not constitute a ban on pre-viability abortions because it ‘merely regulates the time period during which abortions may be performed.’” Accordingly, a state could flout the spirit and letter of existing precedents by enacting “laws banning abortion every day other than the first day after gestation” or by enacting broad bans on pre-viability abortion (such as Senate Bill 2116, the law signed by Mississippi Governor Phil Bryant on March 21, 2019, which bans abortion as soon as a fetal heartbeat is detectable, or a ban at any set number of weeks). Under Mississippi’s logic, the state could simply rationalize these actions as innocuous regulations of “the time period in which abortions may be performed,” even though these hypothetical laws could be used to ban abortion before the point of viability.  

As we explain in our introduction to the brief:

For more than 45 years, the Supreme Court has recognized that the right to privacy, rooted in the Fourteenth Amendment, “encompass[es] a woman’s decision whether or not to terminate her pregnancy.” Roe v. Wade, 410 U.S. 113, 153 (1973). The central tenet of Roe and its progeny is that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 879 (1992) (plurality opinion). This is because “[b]efore viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure.” Id. at 846. The Supreme Court has never wavered from this essential holding. See, e.g., Whole Women’s Health v. Hellerstedt, 136 S. Ct. 2292, 2309 (2016); Stenberg v. Carhart, 530 U.S. 914, 921 (2000).

Notwithstanding this unbroken line of unambiguous precedent, Mississippi enacted House Bill 1510, which prohibits abortions performed at or after fifteen weeks of pregnancy, except in cases of medical emergency or severe fetal abnormalities. It is undisputed that, in prohibiting abortions after only fifteen weeks, this statute prohibits abortions prior to viability. See Appellants’ Br. 15, 20 (conceding this point). Under controlling Supreme Court precedent, that is the end of the matter. The district court correctly held as much, and this Court should affirm.

This result is not only consistent with the Supreme Court’s controlling precedents concerning a woman’s right to choose to terminate her pregnancy, but also with decisions in other contexts holding that categorical bans that eviscerate the core of a constitutional right are impermissible. Like other fundamental rights, the right of a woman to terminate her pregnancy is not unfettered. Nevertheless, the Supreme Court has consistently held that certain restrictions are simply not permitted because of the underlying values that a right protects. In this vein, the Court has consistently concluded that a pre-viability ban is impermissible in light of the underlying values that the abortion right protects. Under the Court’s precedents, no State interest can justify such a pre-viability ban.

Nor may Mississippi use either the federal district court or this Court to re-litigate the factual basis of prior precedents confirming the impermissibility of a pre-viability ban. As the State notes, see Appellants’ Br. 30–35, the district court limited discovery to the issue of viability. That limitation was entirely proper, given that pre-viability bans are flatly unconstitutional. Under controlling Supreme Court precedent, the only relevant factual question at issue here is whether a fetus is viable at fifteen weeks. The State was properly allowed to explore just that issue below; there was no reason to explore other facts.

You can read the full brief here. The brief is joined by a wonderful group of scholars: Jamie Abrams, Aziza Ahmed, Susan Frelich Appleton, Khiara Bridges, David Cohen, Caroline Mala Corbin, Michele Goodwin, Yvonne Lindgren, Maya Manian, Serena Mayeri, Gillian Metzger, Michelle Oberman, Radhika Rao, Rachel Rebouche, Ruthann Robson, Elizabeth Sepper, and Mary Ziegler.

Thanks to our wonderful counsel at O’Melveny & Meyers, Walter Dellinger, Zhao Liu, Stuart Sarnoff, Kelly Scavone, Kendall Turner, for representing us.

This post is co-authored by Melissa Murray and Leah Litman.

@ProfMMurray

@LeahLitman


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