(REVISED 05.17.21) The Center for Reproductive Rights will be returning to the United States Supreme Court next term to defend the right to abortion, a right recognized in Roe v. Wade, the landmark 1973 decision. On May 17, 2021, the Court announced it will hear Mississippi’s appeal of an appellate court decision that threw out Mississippi’s law banning abortion after 15 weeks of pregnancy in this case.
This is the first time the Court will rule on the constitutionality of a pre-viability abortion ban since Roe. The Court’s ruling in Roe recognized that the decision whether to continue a pregnancy or have an abortion, which impacts a person’s body, health, family and future, belongs to the individual, not the government. Nancy Northup, president and CEO of the Center, said in a statement: “Alarm bells are ringing loudly about the threat to reproductive rights. The Supreme Court just agreed to review an abortion ban that unquestionably violates nearly 50 years of Supreme Court precedent and is a test case to overturn Roe v. Wade.”
Case background: The Center for Reproductive Rights, the law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP, Mississippi civil rights attorney Robert B. McDuff, and the Mississippi Center for Justice brought a challenge in Jackson, Mississippi against a regime of Mississippi laws and regulations that have created unconstitutional barriers to the right to access safe, legal abortion and that violate the Supreme Court’s standard in Whole Woman’s Health v. Hellerstedt.
The lawsuit challenges legal restrictions in Mississippi that place burdens on women seeking abortion services, including laws that demean, delay and misinform women, as well as a series of Targeted Regulations of Abortion Providers (TRAP) laws and regulations. As Mississippi has enacted this legal regime over the last two-and-a-half decades, all but one of the state’s abortion clinics have closed. The lawsuit also includes an emergency challenge filed to block the state’s unconstitutional ban on abortion after 15 weeks. In 2019, the Center also filed a challenge to an even more severe abortion ban passed by the Mississippi Legislature, which would ban the procedure as early as 6 weeks.
The restrictions challenged in the lawsuit include:
- TRAP Licensing Scheme: a restrictive clinic licensing system that singles out abortion clinics for a series of unnecessary and unwarranted regulations that far exceed regulations applied to other clinics providing similar and even higher-risk medical care.
- 24-hour mandatory delay: a requirement that women delay their abortion 24 hours after receiving state-mandated information; Mississippi does not subject any other medical care to this requirement.
- Two-trip requirement : a requirement that a woman make two separate trips to and from the clinic before she can obtain an abortion; no other medical care is subject to this requirement in Mississippi.
- Physician only law: a requirement that only physicians provide abortion care, when evidence and experience demonstrate that other medical practitioners can safely provide this care, as they do in several other states.
- Telemedicine ban: a ban that applies only to physicians providing abortions that prohibits physicians from the use of telemedicine to provide consultations and treatment recommendations, including dispensing prescription medications, to patients; no other type of telemedicine consultations or treatments are subject to this prohibition in Mississippi.
- 15 Week Ban: a prohibition on abortions after 15 weeks that threatens physicians with civil penalties for providing that care.
- 6 Week Ban: a law that would make it a crime for doctors to provide an abortion once a heartbeat has been detected—which can happen as early as six weeks of pregnancy
These requirements and restrictions do not make abortion care safer or improve women’s health; instead, they are part of a “step-by-step” legislative strategy by anti-abortion groups and politicians in state legislatures to eliminate access to legal abortion. Anti-abortion legislators have implemented this strategy across the country, and these laws and regulations have hit low-income women, rural communities, and communities of color the hardest.
The Center for Reproductive Rights is using the power of the law and the Supreme Court decision in Whole Woman’s Health v. Hellerstedt to challenge these unconstitutional laws in Mississippi. The landmark ruling reaffirmed a woman’s fundamental right to access abortion, and declared that laws whose benefits do not outweigh the burdens they impose on women’s access to abortion are unconstitutional.
Plaintiff(s): Jackson Women’s Health Organization and Sacheen Carr-Ellis, M.D., M.P.H
Co-Counsel/Cooperating Attorneys: Paul, Weiss, Rifkind, Wharton & Garrison LLP, Robert B. McDuff, and the Mississippi Center for Justice
On March 19, 2018, we filed a complaint and request for a temporary restraining order to block a new law banning all abortions after 15 weeks, as measured from the first day of a woman’s last menstrual period (LMP), just hours after the bill was signed into law by the Governor of Mississippi. Following a short hearing the next day, the district court issued a temporary restraining order blocking enforcement of the law while the case proceeds. On April 9, we filed an amended complaint also challenging Mississippi’s onerous clinic licensing scheme, a mandatory delay law requiring a second, medically unnecessary trip to the clinic before a patient can have an abortion, a biased counseling law, a restriction that prevents qualified medical providers from performing abortions, and a ban on the use of telemedicine for abortion care. All of these additional restrictions are currently in effect and we are currently in discovery for this portion of the case.
On November 20, the district court struck down the 15-week ban for imposing an unconstitutional undue burden on the right to abortion, concluding “that the Mississippi Legislature’s professed interest in ‘women’s health’ is pure gaslighting” and that “respecting [women’s] autonomy demands that this statute be enjoined.” The State quickly appealed the decision to the U.S. Court of Appeals for the Fifth Circuit and, following oral argument, the appellate court ruled in our favor on December 13, 2019. The State then filed a petition for rehearing en banc, which was denied January 17, 2020.
On March 28, 2019, we filed a motion to supplement our complaint to also challenge a 6-week ban that was signed into law in 2019, and received a preliminary injunction on May 24. The State appealed and, following oral argument, the appellate court upheld the injunction on February 20, 2020.
On June 15, 2020, the State filed a cert petition with the U.S. Supreme Court regarding the 15-week ban. The petition was first conferenced on January 8, 2021. On May 17, 2021, the Court granted Mississippi’s cert petition.
Press Release and Features:
- Roe at Risk: U.S. Supreme Court to Review Mississippi’s Abortion Ban, a Direct Challenge to Roe v. Wade, 05/17/21
- Supreme Court to Hear Abortion Ban Case Challenging Roe v. Wade, 05/17/21
- Appeals Court Strikes Down Mississippi 15-Week Abortion Ban, 12/14/19
- Center for Reproductive Rights Announces Challenge to Dozens of Abortion Restrictions in Mississippi, 4/19/2018
- Federal District Court Temporarily Blocks Mississippi’s Unconstitutional 15-Week Ban in Response to Center for Reproductive Rights Challenge, 3/20/2018
- Center for Reproductive Rights Files New Lawsuit Challenging Mississippi’s Unconstitutional 15-Week Ban, 3/19/2018