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Why Mississippi’s Supreme Court Abortion Case Matters In Louisiana

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Hillel Steinberg/Flickr
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A woman holds a sign at a Washington, D.C. rally on Jan. 24, 2020.

The fate of abortion rights is once again heading to the Supreme Court of the United States, in a case that puts the law in Louisiana indirectly on the line.

The justices announced Monday that they’ll hear Dobbs v. Jackson Women’s Health Organization, a lawsuit over a 15-week abortion ban passed by Mississippi lawmakers in 2018.

That same year, Louisiana passed a nearly identical law modeled on Mississippi’s. If the Supreme Court upholds Mississippi’s law, Louisiana’s is also set to take effect, banning abortion after 15 weeks gestation in a significant chunk of the South.

“I think that this is an exciting moment to see the Supreme Court take this up,” said Benjamin Clapper, the executive director of Louisiana Right to Life.

Nancy Northup, the CEO of the Center for Reproductive Rights, the legal nonprofit fighting Mississippi’s case, said “alarm bells are ringing loudly” in the wake of the decision, calling this “a test case to overturn Roe v. Wade.”

Louisiana’s 15-week Ban

Louisiana’s SB 181, introduced by then-Senator John Milkovich, a Democrat, bans abortions after 15 weeks of gestation with exceptions only for medical emergencies. (Mississippi’s law also allows for an exception for a severe fetal anomaly.) At the time, Milkovich argued the law would protect fetuses based on the medically unproven claim that they feel pain in the womb.

“Babies are created in the image of God. We believe they feel pain at 15 weeks, and we thank our sister state of Mississippi for striking a blow in the cause of defense of the life of the unborn,” Milkovich told his fellow lawmakers during a hearing for the bill.

It was amended to only take effect if an appeals court upheld Mississippi’s ban — a move intended to avoid a duplicate court battle and the significant legal fees that go with them — and easily passed the House and Senate before being signed by Democratic Gov. John Bel Edwards. Louisiana could face as much as a $9 million bill after losing a separate abortion case at the Supreme Court last year.

Jackson Women’s Health Organization, Mississippi’s last abortion clinic, sued over Mississippi’s ban and both a federal district court and then the 5th Circuit Court of Appeals blocked it, keeping Louisiana’s from taking effect. Judges on both benches noted that the law clearly violates the precedent established in Roe and repeated in subsequent rulings that abortion cannot be banned before a fetus if viable, or able to live outside the womb.

That is at the heart of why the Supreme Court is taking Dobbs: to decide whether all pre-viability prohibitions on elective abortions are unconstitutional.

Anti-abortion groups reject the use of viability to define whether abortion is constitutional, Clapper said.

“That is really a construct of medical technology,” he said. “I mean, what would have been viability 60 years ago is something far different than what it is today.”

Currently, Louisiana and Mississippi, along with 16 other states, ban abortion at 20 weeks gestation. That’s nearer to viability, which is considered to be around 24 weeks gestation.

Michelle Erenberg, the executive director of Lift Louisiana, a reproductive rights group, noted that the justices were considering the case for over a year, and she called their decision “bold.”

“We’re very concerned that the outcome of this could be an overturning of Roe, or if not, a gutting of Roe so that it doesn’t provide protections for abortion access as it has for the last five decades,” she said.

The Difference Amy Coney Barrett Makes

Dobbs will be the first abortion case to be fully briefed and argued before the Supreme Court since Justice Amy Coney Barrett was confirmed to the bench in October.

Barrett, who grew up in Metairie, La.,, is considered stridently anti-abortion, as are the two other justices appointed by President Donald Trump: Neil Gorsuch and Brett Kavanaugh.

Every new justice changes the court, but Barrett holds particular promise for anti-abortion groups.

When Louisiana lost its own abortion case at the Supreme Court last year, the key vote was the conservative Chief Justice John Roberts. Then the reproductive-rights champion Ruth Bader Ginsburg died. Barrett’s appointment to her seat was seen as a harbinger of anti-abortion wins to come. It shifted the conservative balance of power to 6-3, meaning the right-leaning justices can decide a case without Roberts.

An Unprecedented Year For Abortion Restrictions

This latest Supreme Court battle over abortion comes amid an unprecedented year for abortion restrictions introduced and passed by state legislators.

According to an analysis by the Guttmacher Institute, a reproductive rights and health group, at least 536 abortion restrictions, including 146 bans, introduced across 46 states.

That number is up by more than 200 from 2019.

So far, 61 restrictions have been enacted across 13 states, including eight abortion bans.

In Arizona, lawmakers passed a bill that penalizes abortion providers if the procedure is carried out solely because the fetus has a genetic abnormality, such as Down syndrome. Last month, the 6th Circuit Court of Appeals lifted a hold on a similar ban in Ohio.

Louisiana lawmakers are considering a bill this year that would effectively promote the medically unproven practice of abortion reversals.

The Fate Of Laws Already Passed

While Louisiana’s and Mississippi’s 15-week ban are poised to be enacted if the Supreme Court unwinds the viability standard, dozens of other states could attempt to enact bans even earlier in pregnancy.

According to Guttmacher, three states have attempted to ban abortion at any time; eight including Louisiana have attempted to ban abortion at about six weeks, or when a fetal heartbeat can be detected; one has attempted to ban abortions at eight weeks gestation; and one has attempted to ban abortions at 12 weeks gestation.

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