AG Fitch taking abortion ban ruling to U.S. Supreme Court

Lynn Fitch
Lynn Fitch(Lynn Fitch)
Updated: Oct. 23, 2020 at 4:24 PM CDT
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JACKSON, Miss. (WLBT) - Mississippi’s 15-week abortion ban could soon be argued before the highest court in the land.

The state has filed a brief with the U.S. Supreme Court seeking clarification of a lower court’s decision declaring the state’s 15-week abortion unconstitutional.

The state is asking the court to look at the matter, saying that lower courts are using different legal standards to evaluate state abortion bans.

The decision comes about 11 months after the U.S. Court of Appeals upheld District Court Judge Carlton Reeves' decision to block the law from going into effect.

State leaders say the high court might be willing to consider the case, saying two circuit courts of appeals opinions “were split on which standard to apply in assessing a state’s pre-viability abortion laws.”

“In one case, the Fifth Circuit applied a balancing of benefits and burdens … and only three days later the Sixth Circuit applied the undue-burden test,” according to a statement from Attorney General Lynn Fitch.

“The Supreme Court is more inclined to take a case like our defense of Mississippi’s 15-week law when it provides the opportunity to clarify an issue on which circuits have split,” the statement said.

Matt Steffey, a professor of law at the Mississippi College School of Law, said the state’s ultimate goal is to get the ban upheld or have Roe v. Wade repealed or significantly scaled back.

“They’re trying to give the Supreme Court a reason to take up the case, even though under existing law, the (lower decisions) were correct,” he said.

Steffey said the state isn’t arguing the lower court’s decision, per se, but rather the fact that lower courts are ruling on abortion bans using different standards.

He said the court could be more willing to take up a case had some bans been upheld and others had been struck down.

However, circuit and district courts have been striking down state abortion bans regularly.

“It’s always a long shot to get a case before the court,” he said. “Other states are also trying it.”

At the heart of the matter is the state law that prohibits abortions during the first 15 weeks of pregnancy, and whether it should be analyzed under the “undue burden” standard established in one case, or the “balancing of benefits and burdens” standard established in another.

In Planned Parenthood v. Casey, the Supreme Court established the “undue burden standard to separate permissible restrictions from those that are unconstitutional,” according to the Center for Reproductive Rights.

In a separate case, the high court adopted a balancing of benefits rule, which “clarified that when courts assess benefits, they need to apply heighted scrutiny to the state’s claims about whether and how a law actually advances a valid state interest,” according to the center.

Lower courts have used both standards in recent rulings on abortion bans.

According to Fitch, “We wanted to bring this deepening circuit split to the court’s attention.”

Mississippi lawmakers approved a ban on abortions after 15 weeks in 2018.

According to NBC News, the law was “likely to be the nation’s most restrictive abortion law.”

NBC went on to say that the owner the Jackson Women’s Health Organization, the state’s only abortion clinic would file suit if the bill was signed.

The law was eventually challenged by the Center for Reproductive Rights and the Mississippi Center for Justice.

In November 2018, NBC reported Reeves struck down the ban, saying it violated women’s constitutional rights.

The brief was filed on October 22.

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