Fifth Circuit court Judge Patrick Higginbotham authored the opinion for the Fifth Circuit in 2019, upholding the district court's decision.
“In an unbroken line dating to Roe v. Wade , the Supreme Court’s abortion cases have established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before viability. States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right, but they may not ban abortions,” he wrote.
“The law at issue is a ban. Thus, we affirm the district court’s invalidation of the law, as well as its discovery rulings and its award of permanent injunctive relief,” he added.
In the state’s petition to the Supreme Court, Mississippi health officer Thomas Dobbs argued that the standard of “viability” – when an unborn child is medically determined to be able to survive outside the mother’s womb – is arbitrary.
The court said in its 1973 Roe v. Wade ruling that states could not ban abortion pre-viability, and could only regulate it in the second trimester. In 1992, the court ruled in Planned Parenthood v. Casey that states could regulate abortions pre-viability, but could not pose an “undue burden” on women seeking abortion.
“Thanks to amazing progress in scientific research and medical technology, the concept of ‘viability’ is an ever-moving target as younger children have survived and thrived after preterm birth,” stated ADF senior counsel and vice president of appellate advocacy John Bursch.
Bursch added that “‘viability’ has never been a legitimate way to determine a developing infant’s dignity or to decide anybody’s legal existence.”
The state of Mississippi also argued that, according to medical expertise, abortions pose greater risks to the health of the mother after 16 weeks of pregnancy, and the unborn child is capable of feeling pain after 15 weeks and possibly even before that time in the pregnancy.
The Jackson Women's Health Clinic is the only remaining abortion clinic in Mississippi.
The Senate pro-life caucus chair Steve Daines (R-Mont.) also approved of the court’s taking up the case on Monday.
“There is no constitutional right to abortion, yet for nearly 50 years since Roe v. Wade was wrongly decided, more than 62 million children have been the tragic victims of abortion,” Daines said. “It is long past time for the Supreme Court to right this wrong and I am encouraged to see the Court announce it will take up this case.”
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This article was updated with additional information on May 17.