Jackson Women's Health Orgn v. Thomas Dobbs ( 2019 )

Case: 18-60868 Document: 00515236528 Page: 1 Date Filed: 12/13/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 13, 2019
No. 18-60868
Lyle W. Cayce
Clerk
JACKSON WOMEN'S HEALTH ORGANIZATION, on behalf of itself and its
patients; SACHEEN CARR-ELLIS, M.D., M.P.H., on behalf of herself and her
patients,
Plaintiffs - Appellees
v.
THOMAS E. DOBBS, M.D., M.P.H., in his official capacity as State Health
Officer of the Mississippi Department of Health; KENNETH CLEVELAND,
M.D., in his official capacity as Executive Director of the Mississippi State
Board of Medical Licensure,
Defendants - Appellants
Appeal from the United States District Court
for the Southern District of Mississippi
Before HIGGINBOTHAM, DENNIS, and HO, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge.
This case concerns a Mississippi law that prohibits abortions, with
limited exceptions, after 15 weeks’ gestational age. The central question before
us is whether this law is an unconstitutional ban on pre-viability abortions. 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,
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but they may not ban abortions. 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.
I.
On March 19, 2018, Mississippi enacted House Bill 1510, entitled the
“Gestational Age Act” (“the Act”). 1 The Act provides that, in most cases, an
abortion cannot be performed until a physician first determines and documents
a fetus’s probable gestational age. 2 Then,
[e]xcept in a medical emergency or in the case of a severe fetal
abnormality, a person shall not perform, induce, or attempt to
perform or induce an abortion of an unborn human being if the
probable gestational age of the unborn human being has been
determined to be greater than fifteen (15) weeks. 3
The legislature found that most abortions performed after 15 weeks’
gestation are dilation and evacuation procedures and that “the intentional
commitment of such acts . . . is a barbaric practice, dangerous for the maternal
patient, and demeaning to the medical profession.” It also found that
developments in medical knowledge of prenatal development have shown that,
1 Gestational Age Act, ch. 393, § 1, 2018 Miss. Laws (codified at MISS. CODE ANN.
§ 41–41–191).
2 Gestational age is measured by the time elapsed since the woman’s last menstrual
period (LMP).
3 “Severe fetal abnormality” is defined as “a life-threatening physical condition that,
in reasonable medical judgment, regardless of the provision of life-saving medical treatment,
is incompatible with life outside the womb.” “Medical emergency” is defined as a condition in
which “an abortion is necessary to preserve the life of a pregnant woman whose life is
endangered by a physical disorder, physical illness, or physical injury, including a life-
endangering physical condition arising from the pregnancy itself, or when the continuation
of the pregnancy will create a serious risk of substantial and irreversible impairment of a
major bodily function.” Also, the medical licenses of doctors who violate the Act “shall be
suspended or revoked[.]”
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for example, the abilities to open and close fingers and sense outside
stimulations develop at 12 weeks’ gestation. Finally, it found that abortion
carries risks to maternal health that increase with gestational age, and it noted
that Mississippi has legitimate interests in protecting women’s health.
On the day the Act was signed into law, Jackson Women’s Health
Organization, the only licensed abortion facility in Mississippi, and one of its
doctors, Dr. Sacheen Carr-Ellis (collectively “the Clinic”), filed suit challenging
the Act and requesting an emergency temporary restraining order. The next
day, the district court held a hearing and issued a temporary restraining
order. 4
The district court also granted the Clinic’s motion to limit discovery to
the issue of viability. It determined that the Act “is effectively a ban on all
elective abortions after 15 weeks,” and “[g]iven the Supreme Court’s viability
framework, that ban’s lawfulness hinges on a single question: whether the 15-
week mark is before or after viability.” Under this view, Mississippi’s asserted
state interests were irrelevant and the State’s discovery was aimed at rejecting
the Supreme Court’s viability framework, not at defending the Act within that
framework.
The State served extensive written discovery requests, which the Clinic
opposed to the extent they reached beyond the viability question. The State
also designated Dr. Maureen Condic as an expert in neurological embryology
4 The Clinic later amended its complaint, adding five new challenges to other
Mississippi abortion laws. The district court, invoking its discretion under Federal Rule of
Civil Procedure 42, bifurcated the case: Part One covers the challenges to the 2018 Act, while
Part Two covers the challenges to the earlier-enacted Mississippi laws. The district court
denied the State’s motion to reconsider this bifurcation. This appeal only concerns Part One;
Part Two remains at the district court.
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and fetal development. On the Clinic’s motion, the district court excluded Dr.
Condic’s expert report because the State had conceded that it pertained to the
issue of fetal pain and not to viability. 5
Discovery concluded and the Clinic moved for summary judgment. The
Clinic submitted evidence that viability is medically impossible at 15 weeks
LMP. The State conceded that it had identified no medical evidence that a fetus
would be viable at 15 weeks. It also conceded that the Act bans abortions for
some women prior to viability. Still, the State opposed summary judgment
because the Act “merely limits the time frame” in which women must decide to
have an abortion and because the Supreme Court has left unanswered whether
Mississippi’s asserted state interests can justify the Act.
The district court granted summary judgment to the Clinic. The Act was
unconstitutional, the court held, because “viability marks the earliest point at
which the State’s interest in fetal life is constitutionally adequate to justify a
legislative ban on nontherapeutic abortions.” 6 As summarized by the district
court, “[t]he record is clear: States may not ban abortions prior to viability;
15 weeks lmp is prior to viability; and plaintiffs provide abortion services to
Mississippi residents after 15 weeks lmp.” 7 Finally, rejecting the State’s
argument that the Clinic could only seek an injunction up to 16 weeks LMP
(since the Clinic does not provide abortions after that point), the district court
permanently enjoined the Act in all applications. 8
5 The district court denied the Clinic’s motion in part, allowing the State to proffer the
report and thus preserve the evidentiary issue.
6 Jackson Women’s Health Org. v. Currier, 349 F. Supp. 3d 536, 539 (S.D. Miss. 2018)
(quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 883, 860 (1992) (plurality opinion)).
7 Id.
8 Id. at 543–45.
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II.
This Court reviews a grant of summary judgment de novo, applying the
same standard as the district court. 9 Summary judgment is warranted “if the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” 10 A district court’s decision
to limit discovery is reviewed for abuse of discretion, 11 as is a district court’s
tailoring of injunctive relief. 12
III.
The State raises five main arguments on appeal: (1) the Supreme Court’s
decision in Gonzales v. Carhart preserves the possibility that a “state’s interest
in protecting unborn life can justify a pre-viability restriction on abortion”; 13
(2) the district court abused its discretion by restricting discovery, thus
stymying the State’s effort to develop the record; (3) the district court failed to
defer to the legislature’s findings; (4) the Act imposes no undue burden, as it
only shrinks by one week the window in which women can elect to have
abortions; and (5) the Clinic lacked standing to challenge the Act’s application
after 16 weeks, the point at which the Clinic stops providing abortions under
its own procedures.
These issues collapse to three: whether the summary-judgment order
properly applies the Supreme Court’s abortion jurisprudence, whether limiting
discovery to viability was an abuse of discretion, and whether the scope of
9 Cuadra v. Hous. Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010).
10 FED. R. CIV. P. 56(a).
11 Crosby v. La. Health Serv. & Indem. Co., 647 F.3d 258, 261 (5th Cir. 2011).
12 Liberto v. D.F. Stauffer Biscuit Co., Inc., 441 F.3d 318, 323 (5th Cir. 2005).
13 Gonzales, 55 U.S. 124 (2007).
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injunctive relief was proper.
A.
In Roe v. Wade, the Supreme Court held that the right to privacy “is
broad enough to encompass a woman’s decision whether or not to terminate
her pregnancy.” 14 Casey “reaffirm[ed]” Roe’s “recognition of the right of the
woman to choose to have an abortion before viability and to obtain it without
undue interference from the State. Before 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.” 15
In Gonzales, the case on which the State’s argument relies, the Court
“assume[d] the following principles”:
Before viability, a State “may not prohibit any woman from
making the ultimate decision to terminate her pregnancy.” It also
may not impose upon this right an undue burden, which exists if a
regulation’s “purpose or effect is to place a substantial obstacle in
the path of a woman seeking an abortion before the fetus attains
viability.” On the other hand, “[r]egulations which do no more than
create a structural mechanism by which the State, or the parent
or guardian of a minor, may express profound respect for the life
of the unborn are permitted, if they are not a substantial obstacle
to the woman’s exercise of the right to choose.” Casey, in short,
struck a balance. 16
The district court applied these principles straightforwardly. It
14 410 U.S. 113, 153 (1973).
15 Casey, 505 U.S. at 846; see also Whole Woman’s Health v. Hellerstedt, 136 S. Ct.
2292, 2300 (2016) (citing Casey for the proposition that a law unduly burdens a woman’s right
to choose an abortion it if bans abortion “before the fetus attains viability”).
16 Gonzales, 550 U.S. at 146 (citations omitted) (quoting Casey, 505 U.S. at 879, 878,
and 877). The State makes much of the Court’s assuming, rather than reaffirming or
otherwise stating conclusively, these principles. But an assumption of a prior holding’s
validity is not a reversal of that holding. Nothing in Gonzales signals that we should decline
to apply Roe and its descendants.
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recognized, as the controlling standard in this case, Casey’s holding that no
state interest can justify a pre-viability abortion ban. The State conceded that
it had no evidence of viability at 15 weeks LMP and that it is the Mississippi
Department of Health’s position that a fetus cannot survive outside the womb
at 15 weeks LMP; accordingly, the court concluded that the Act prohibits pre-
viability abortions. 17 The Act’s consequences were undisputed: Dr. Carr-Ellis
averred that the Clinic provides an abortion to at least one woman per week
after 14 weeks 6 days LMP, so the Act would force these women to carry their
pregnancies to term against their will or to leave the state for an abortion. 18
There was thus no dispute that the Act prohibited pre-viability abortions,
which ended the district court’s analysis.
This result accords with those reached by the circuit courts that have
addressed similar abortion prohibitions. For example, the Ninth Circuit
invalidated a ban at 20 weeks in Isaacson v. Horne; 19 the Eighth Circuit
invalidated bans at 6 and 12 weeks in MKB Management Corporation v.
Stenehjem 20 and Edwards v. Beck, 21 respectively; and the Tenth Circuit
17 Jackson, 349 F. Supp. 3d at 540.
18 Id.
19 716 F.3d 1213, 1225 (9th Cir. 2013), cert. denied, 571 U.S. 1127 (2014); see also id.
at 1217 (observing that the Supreme Court has been “unalterably clear” that “a woman has
a constitutional right to choose to terminate her pregnancy before the fetus is viable”). The
Ninth Circuit also invalidated Idaho’s 20-week ban in McCormack v. Herzog, 788 F.3d 1017,
1029 (9th Cir. 2015) (“Because § 18–505 places an arbitrary time limit on when women can
obtain abortions, the statute is unconstitutional.”).
20 795 F.3d 768, 773 (8th Cir. 2015) (affirming a grant of summary judgment because
a 6-week ban “generally prohibits abortions before viability”), cert. denied, 136 S. Ct. 981
(2016).
21 786 F.3d 1113, 1117 (8th Cir. 2015) (“By banning abortions after 12 weeks’
gestation, the Act prohibits women from making the ultimate decision to terminate a
pregnancy at a point before viability.”), cert. denied, 136 S. Ct. 895 (2016).
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invalidated a ban at 22 weeks in Jane v. Bangerter. 22 Recent district court
decisions have followed suit. 23
The State’s primary constitutional argument on appeal is that the
district court should have accounted for the State’s interests and then
determined whether the Act imposes an undue burden. The State argues that
if the district court had done so, and if it had recognized that viability is not
the only proper consideration in assessing the Act’s lawfulness, it would have
determined that the Act is constitutional.
The parties dispute whether the Act bans abortions or regulates them, a
distinction vital to evaluating the Act’s lawfulness. Pre-viability regulations of
abortion procedures can pass constitutional muster if they do not pose an
undue burden, which requires the weighing of state interests against the
burden on a woman’s right to elective abortion. 24 If the Act is a regulation, then
the State’s interests should have been considered. Prohibitions on pre-viability
abortions, however, are unconstitutional regardless of the State’s interests
because “a State may not prohibit any woman from making the ultimate
decision to terminate her pregnancy before viability.” 25 “[V]iability marks the
22 102 F.3d 1112, 1115 (10th Cir. 1996), cert. denied, 520 U.S. 1274 (1997).
23 See Preterm-Cleveland v. Yost, 394 F. Supp. 3d 796, 801 (S.D. Ohio 2019) (enjoining
Ohio’s 6-week ban); EMW Women’s Surgical Ctr., P.S.C. v. Beshear, No. 3:19-CV-178, 2019
WL 1233575, at *2 (W.D. Ky. Mar. 15, 2019) (enjoining Kentucky’s 6-week ban); Bryant v.
Woodall, No. 1:16-CV-1368, 2019 WL 1326900, at *14–15 (M.D.N.C. Mar. 25, 2019)
(invalidating North Carolina’s 20-week ban); Little Rock Family Planning Servs. v. Rutledge,
No. 4:19-CV-449, 2019 WL 3679623, at *1 (E.D. Ark. Aug. 6, 2019) (enjoining Arkansas’s 18-
week ban).
24 See Casey, 505 U.S. at 878 (“To promote the State’s profound interest in potential
life, throughout pregnancy the State may take measures to ensure that the woman’s choice
is informed, and measures designed to advance this interest will not be invalidated as long
as their purpose is to persuade the woman to choose childbirth over abortion. These measures
must not be an undue burden on the right.”).
25 Id. at 879.
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earliest point at which the State’s interest in fetal life is constitutionally
adequate to justify a legislative ban on nontherapeutic abortions.” 26 Thus, if
the Act is a ban, the State’s interests cannot outweigh the woman’s right to
choose an abortion and the undue-burden balancing test has no place in this
case.
The State casts the Act as a mere regulation of the time period during
which abortions may be performed, akin to a regulation of the time, place, or
manner of speech. 27 The State argues the Act is not a ban because it allows
abortions before 15 weeks LMP, it contains exceptions, and, practically
speaking, it only limits the relevant time frame by one week, since the Clinic
(the only abortion provider in Mississippi) does not perform abortions after 16
weeks LMP.
Finally, the State likens the Act to the federal Partial-Birth Abortion
Ban Act of 2003 that was upheld in Gonzales v. Carhart. 28 The Gonzales Court
emphasized congressional findings that partial-birth abortion contravened
governmental interests in “the dignity of human life” and “the integrity and
ethics of the medical profession.” 29 Here, the State asserts the same interests
on behalf of Mississippi, and likens the “brutal and inhumane” partial-birth
abortion procedure to the State’s evidence of purported fetal pain.
In the State’s view, the district court should have evaluated, as did the
Gonzales Court, whether the Act “place[s] a substantial obstacle in the path of
26Id. at 860.
27The district court observed that the Act’s title betrays its effect:
“The Act’s full title is ‘An Act to be Known As the Gestational Age Act; To Prohibit Abortions
After 15 Weeks’ Gestation.’ ‘Ban’ and ‘prohibit’ are synonyms. This Act is a ban. It is not a
regulation.” Jackson, 349 F. Supp. 3d at 541.
28 See Gonzales, 550 U.S. at 147.
29 Id. at 157.
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a woman seeking an abortion before the fetus attains viability[.]” 30 Under this
analysis, the State contends the Act “would likely be upheld, since it allows
women up to three and a half months to decide whether to have an abortion.”
Thus, the State argues that the relatively few women “who would be required
to make their ultimate decision whether to have an abortion one week earlier”
do not outweigh “the harm to the State by requiring it to permit inhumane
abortion procedures which cause a fetus to experience pain—a factor the
Supreme Court has never explicitly addressed.” 31
These arguments do not save the Act from encroaching on the holding of
Casey. The Act pegs the availability of abortions to a specific gestational age
that undisputedly prevents the abortions of some non-viable fetuses. It is a
prohibition on pre-viability abortion. 32 Gonzales is distinguishable for the same
reason that any case considering a pre-viability regulation is distinguishable:
laws that limit certain methods of abortion or impose certain requirements on
those seeking abortions are distinct under Casey from those that prevent
women from choosing to have abortions before viability.
In recognition of state interests, Casey allows restrictions on pre-viability
abortions that are not an undue burden on a woman’s right to elective abortion.
The ban on partial-birth abortions in Gonzales is one example. But the Act is
not such a restriction, so this legal principle, while valid, has no application
here. Casey clarified that the “adoption of the undue burden analysis does not
30 Id. at 156 (quoting Casey, 505 U.S. at 878)).
31 In 2017, the State notes, 90 women had abortions at the Clinic after 15 weeks LMP.
32 The Ninth Circuit rejected similar arguments in Isaacson, which stated that a
prohibition at a certain pre-viability point “does not merely ‘encourage’ women to make a
decision regarding abortion earlier than Supreme Court cases require; it forces them to do
so.” 716 F.3d at 1227.
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disturb the central holding of Roe”: “a State may not prohibit any woman from
making the ultimate decision to terminate her pregnancy before viability.” 33
This “central holding of Roe” is what the Act implicates here, as the State asks
us to extend the undue-burden analysis past Casey’s clear demarcation. That
the Act does not ban all abortions, but only those after 15 weeks LMP, does not
change the fact that viability is the critical point. 34 Nor is the number of
affected women relevant to the Act’s lawfulness, as Casey made clear that “a
State may not prohibit any woman from making the ultimate decision to
terminate her pregnancy before viability.” 35
The Act is a ban on certain pre-viability abortions, which Casey does not
tolerate and which presents a situation unlike that in Gonzales. With respect
to bans like this one, the Supreme Court’s viability framework has already
balanced the State’s asserted interests and found them wanting: Until
viability, it is for the woman, not the state, to weigh any risks to maternal
health and to consider personal values and beliefs in deciding whether to have
an abortion. 36
B.
Next, the State challenges the district court’s decisions limiting
discovery to the issue of viability and excluding expert testimony regarding
fetal pain perception.
33 Casey, 505 U.S. at 879.
34 See Colautti v. Franklin, 439 U.S. 379, 388–89 (1979) (“Because [the point of
viability] may differ with each pregnancy, neither the legislature nor the courts may proclaim
one of the elements entering into the ascertainment of viability—be it weeks of gestation or
fetal weight or any other single factor—as the determinant of when the State has a
compelling interest in the life or health of the fetus. Viability is the critical point.”).
35 Casey, 505 U.S. at 879 (emphasis added).
36 See id. at 846, 853.
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The scope of discovery is generally broad and allows for “any
nonprivileged matter that is relevant to any party’s claim or defense.” 37 A court
is afforded broad discretion when deciding discovery matters, but the court
abuses its discretion when its decision is based on an erroneous view of the
law. 38 Still, we “will only vacate a court’s judgment if the court’s abuse of
discretion affected the substantial rights of the appellant.” 39
The State argues the district court abused its discretion by limiting
discovery to one issue—whether 15 weeks LMP is before or after viability. The
State seeks a remand for development of a complete record in conjunction with
the discovery being conducted for Part Two of this litigation. If a district court
does not need to consider new evidence, the State argues, courts will remain
“willfully blind” to scientific developments and the Supreme Court can never
see a full record in an abortion case.
But the result of the State’s challenges to the district court’s discovery
rulings flows from our holding that the Act unconstitutionally bans pre-
viability abortions. No state interest is constitutionally adequate to ban
abortions before viability, so the interests advanced here are legally irrelevant
to the sole issue necessary to decide the Clinic’s constitutional challenge.
Bound as the district court was by the viability framework, it was within its
discretion to exclude this evidence. 40
37 See FED. R. CIV. P. 26(b)(1).
38 Crosby v. La. Health Serv. & Indem. Co., 647 F.3d 258, 261 (5th Cir. 2011) (citing
Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 387 (5th Cir. 2009)).
39 Id. (citing Marathon Fin. Ins., Inc., RRG v. Ford Motor Co., 591 F.3d 458, 469 (5th
Cir. 2009)).
40 The Eighth Circuit, in MKB Management, affirmed the same discovery limitation
that the district court imposed here—since “viability presents the central issue,” an “order
limiting discovery to the issue of viability” was not an abuse of discretion. 795 F.3d at 773
n.4.
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C.
Finally, the State contends that the district court overreached in
fashioning the permanent injunctive relief it granted to the Clinic. It argues
that (1) the Clinic lacks standing to bring a facial challenge because the Clinic
does not perform abortions after 16 weeks LMP and (2) the relief awarded by
the district court is not narrowly tailored to the Clinic’s alleged injury.
The State conflates standing with relief. A plaintiff must show standing
“for each claim he seeks to press” and “each form of relief sought.” 41 The Clinic
has done so, as it pursued its constitutional claims on behalf of its patients,
and its requested form of relief (permanent injunction of the Act) redressed the
Act’s pre-viability ban on abortions, which is an injury traceable to the State.
This challenge to the scope of relief is better addressed in terms of the court’s
exercise of discretion in tailoring the remedy, not in terms of standing.
To that end, the State argues the district court should have narrowly
tailored the permanent injunctive relief to the injury, which it contends is the
Clinic’s inability to perform abortions up to 16 weeks LMP. The State argues
it was error to facially invalidate the Act without first considering its
constitutionality as applied to the Clinic and its patients. The State asks us to
vacate the relief granted and order the district court to craft a remedy tailored
to its view of the actual dispute, which is whether the Act is unconstitutional
as applied to abortions performed at or before 16 weeks LMP.
In June Medical Services v. Gee, decided two months before the district
court’s order, we “resolve[d] the appropriate framework for reviewing facial
challenges to abortion statutes.” 42 We concluded that the Supreme Court
41 DaimlerChrysler Corp v. Cuno, 547 U.S. 332, 352 (2006).
42 905 F.3d 787, 801 (5th Cir. 2018), cert. granted, --- S. Ct. ----, 2019 WL 4889929
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eliminated the uncertainty by adopting, in Hellerstedt, the Casey plurality’s
test: An abortion restriction is facially invalid if “in a large fraction of the cases
in which it is relevant, it will operate as a substantial obstacle.” 43 The relevant
denominator includes only “those women for whom the provision is an actual
rather than an irrelevant restriction[,]” which is a narrower category than “all
women,” “pregnant women,” or even “women seeking abortions identified by
the State.” 44
Here, the Act is invalid as applied to every Mississippi woman seeking
an abortion for whom the Act is an actual restriction, never mind a large
fraction of them. 45 And for those women, the obstacle is insurmountable, not
merely substantial. That the Act applies both pre- and post-viability does not
save it. Mississippi has already banned all abortions after 20 weeks by
separate statute. 46 The only women to whom the Act is an actual restriction,
then, are those who seek abortions before 20 weeks; the Act is redundant of
existing Mississippi law as to all abortions after that point. This is the tack
taken by the Ninth Circuit in Isaacson, where Arizona’s 20-week ban only had
practical significance until viability because Arizona separately bans post-
viability abortion:
[G]iven the controlling, substantive legal standards, [the 20-week
law] is invalid as applied to every woman affected by its
(mem.) (Oct. 4, 2019).
43 Id. at 801–02 (quoting Casey, 505 U.S. at 895). We noted that earlier decisions had
used the “no set of circumstances” standard of United States v. Salerno, 481 U.S. 739, 745
(1987). Id.
44 Id. (quoting Hellerstedt, 136 S. Ct. at 2320).
45 Jackson, 349 F. Supp. 3d at 544. Of course, as the district court acknowledged, the
practical result of as-applied relief would be the same as that of facial relief, since the Clinic
is the only abortion provider in Mississippi.
46 See MISS. CODE ANN. § 41–41–137 (prohibiting anyone from performing abortions
after 20 weeks’ gestational age).
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prohibition on abortions. In other words, there is a one hundred
percent correlation between those whom the statute affects and its
constitutional invalidity as applied to them. . . . [G]iven the one
hundred percent correlation, there is no doubt the special rule that
applies to facial challenges in abortion cases—that plaintiffs need
only show the law challenged is invalid “in a large fraction of the
cases in which [the statute] is relevant[.]” 47
In Sojourner T v. Edwards, we facially invalidated a Louisiana ban
criminalizing nearly all abortions because its pre-viability applications were
clearly unconstitutional under Casey. 48 We did so without discussing its
theoretically valid post-viability applications (although the Clinic notes that,
as has Mississippi here and as had Arizona in Isaacson, Louisiana had
otherwise banned post-viability abortions, making these possible applications
redundant). 49
Even if we disregarded the separate Mississippi abortion law and even
if we were to expand the denominator to include all women seeking abortions
rather than only those seeking them before 20 weeks (the period when the Act
alters Mississippi law) or those seeking them between 15 and 16 weeks (when
the Act has practical significance for women visiting the state’s sole abortion
provider), the Act would still pose a substantial obstacle in a “large fraction” of
cases. 50 It might be plainer still simply to say what other courts have said in
47 Isaacson, 716 F.3d at 1230–31.
48 974 F.2d 27, 31 (5th Cir. 1992).
49 See LA. STAT. ANN. § 40:1061.13.
50 Under this broader view, we would also reach this determination because we
recognize that it is not our role to rewrite an unconstitutional statute. See United States v.
Stevens, 559 U.S. 460, 481 (2010) (“We will not rewrite a . . . law to conform it to constitutional
requirements, for doing so would constitute a serious invasion of the legislative domain
. . . .”) (internal quotation marks and citations omitted) (first alteration in original); see also
Women’s Med. Prof’l Corp. v. Voinovich, 130 F.3d 187, 202 (6th Cir. 1997) (concluding that a
ban on the abortion procedure of dilation and extraction was unconstitutional as applied to
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similar cases: This law is facially unconstitutional because it directly conflicts
with Casey. 51 Accordingly, the district court did not abuse its discretion in
declining to fashion relief narrowly just because the result of the Clinic’s
internal policies is that no facility in Mississippi provides abortions after 16
weeks LMP. 52
IV.
We affirm the judgment of the district court.
pre-viability procedures but not as to post-viability procedures but striking the entire statute
since the court “essentially would have to rewrite the Act in order to create a provision which
could stand by itself”); R.I. Med. Soc. v. Whitehouse, 239 F.3d 104, 106 (1st Cir. 2001) (striking
down statute banning so-called partial birth abortion procedure despite severability
provision because the statute “contain[ed] no provisions, sections, subsections, sentences,
clauses, phrases or words distinguishing between nonviable and viable fetuses, which would
make it capable of being severed”).
51 See Jane L v. Bangerter, 102 F.3d 1112, 1116 n.4 (10th Cir. 1996) (“For a woman
seeking the nontherapeutic abortion of a fetus that is not viable despite fitting the statutory
definition in [the Utah ban on abortions after 20 weeks], however, that section goes beyond
creating a hindrance and imposes an outright ban. Rather than apply [Casey] in these
circumstances, it may be more appropriate simply to conclude that the section is invalid as
contrary to controlling Supreme Court precedent precluding a legislature from defining the
critical fact of viability as Utah has done here.”); see also McCormack v. Herzog, 788 F.3d
1017, 1030 (9th Cir. 2015) (concluding 20-week ban was “directly contrary” to Casey and thus
“facially unconstitutional”).
52 The Eighth Circuit has similarly affirmed relief that was not limited to the abortion
clinic’s practices. MKB Mgmt. Corp. v. Burdick, 16 F. Supp. 3d 1059, 1075 (D.N.D. 2014),
aff’d, 795 F.3d 768 (8th Cir. 2015) (granting complete injunction against 6-week ban even
though the plaintiff clinic stopped performing abortions at 16 weeks).
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JAMES C. HO, Circuit Judge, concurring in the judgment:
Nothing in the text or original understanding of the Constitution
establishes a right to an abortion. Rather, what distinguishes abortion from
other matters of health care policy in America—and uniquely removes abortion
policy from the democratic process established by our Founders—is Supreme
Court precedent. The parties and amici therefore draw our attention not to
what the Constitution says, but to what the Supreme Court has held. 1
A good faith reading of those precedents requires us to affirm. Tellingly,
the able counsel who brought this appeal on behalf of the State of Mississippi
did not even request oral argument, notwithstanding the high stakes for their
clients—the constitutionality of a recent enactment of profound moral
significance to the citizens of Mississippi. That omission makes no sense but
for the fact that Supreme Court precedent requires affirmance.
I am nevertheless deeply troubled by how the district court handled this
case. The opinion issued by the district court displays an alarming disrespect
for the millions of Americans who believe that babies deserve legal protection
during pregnancy as well as after birth, and that abortion is the immoral,
tragic, and violent taking of innocent human life. Notably, the States of Texas
1 It is well established that this body of precedent admittedly rests not on
constitutional text, but on a doctrine of unenumerated, judicially created rights. Justice
Blackmun once said, for example, that doctrines “[l]ike the Roe framework . . . are not, and
do not purport to be, rights protected by the Constitution.” Webster v. Reprod. Health Servs.,
492 U.S. 490, 548 (1989) (Blackmun, J., concurring in part and dissenting in part). See also
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 847, 853 (1992) (discussing judicial
enforcement of rights like abortion that are “mentioned nowhere in the Bill of Rights”); Roe v.
Wade, 410 U.S. 113, 152–53 (1973) (admitting that “[t]he Constitution does not explicitly
mention” rights like abortion); Washington v. Glucksburg, 521 U.S. 702, 756, 763 (1997)
(Souter, J., concurring in the judgment) (discussing the Supreme Court’s “practice in
recognizing unenumerated, substantive limits on governmental action” in areas such as
abortion).
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and Louisiana devote the majority of their amicus brief to the unusual but
unfortunately warranted request that we explicitly disapprove of the district
court opinion.
The district court no doubt believes that its opinion faithfully reflects one
side of the debate—the side that believes that abortion is a necessary
component of a woman’s personal autonomy. But the Supreme Court has made
clear that both sides of the debate deserve respect. “Men and women of good
conscience can disagree . . . about the profound moral and spiritual
implications of terminating a pregnancy.” Planned Parenthood of Se. Pa. v.
Casey, 505 U.S. 833, 850 (1992). Countless Americans believe in good faith
that abortion is “nothing short of an act of violence against innocent human
life.” Id. at 852. The majority in Casey even acknowledged that “[s]ome of us
as individuals find abortion offensive to our most basic principles of morality.”
Id. at 850.
Instead of respecting all sides, the district court opinion disparages the
Mississippi legislation as “pure gaslighting.” It equates a belief in the sanctity
of life with sexism, disregarding the millions of women who strongly oppose
abortion. And, without a hint of irony, it smears Mississippi legislators by
linking House Bill 1510 to the state’s tragic history of race relations, while
ignoring abortion’s own checkered racial past.
Supreme Court precedent dictates abortion policy in America. So I am
duty bound to affirm the judgment of the district court. But I cannot affirm
the opinion of the district court.
I.
Like every other court to consider the issue, the majority concludes that Casey
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prohibits any and all bans on pre-viability abortions. See, e.g., Casey, 505 U.S.
at 879 (plurality opinion) (“[A] State may not prohibit any woman from making
the ultimate decision to terminate her pregnancy before viability.”); see also
Gonzales v. Carhart, 550 U.S. 124, 146 (2007). 2 The majority therefore
2 See also, e.g., W. Ala. Women’s Ctr. v. Williamson, 900 F.3d 1310, 1314 (11th Cir.
2018) (“At [the 15 to 18 week stage of fetal development], it is settled under existing Supreme
Court decisions that the State of Alabama cannot forbid [dilation and evacuation abortions]
entirely.”); id. at 1330 (Dubina, J., concurring specially) (same); Planned Parenthood of Ind.
& Ky., Inc. v. Comm’r of the Ind. State Dep’t of Health, 917 F.3d 532, 536 (7th Cir. 2018)
(Easterbrook, J., dissenting from denial of rehearing en banc) (“Casey and other decisions
hold that, until a fetus is viable, a woman is entitled to decide whether to bear a child.”);
Planned Parenthood of Ind. & Ky., Inc. v. Comm’r of the Ind. State Dep’t of Health, 888 F.3d
300, 305 (7th Cir. 2018), judgment vacated in part sub nom. Box v. Planned Parenthood of
Ind. & Ky., Inc., 139 S. Ct. 1780, 1782 (2019) (per curiam) (“Casey’s holding that a woman
has the right to terminate her pregnancy prior to viability is categorical.”); id. at 311 (Manion,
J., concurring in the judgment in part and dissenting in part) (“[T]he fact remains that Casey
has plainly established an absolute right to have an abortion before viability.”); MKB Mgmt.
Corp. v. Stenehjem, 795 F.3d 768, 773 (8th Cir. 2015) (“[W]e are bound by Supreme Court
precedent holding that states may not prohibit pre-viability abortions.”); McCormack v.
Herzog, 788 F.3d 1017, 1029 (9th Cir. 2015) (banning “all abortions between twenty weeks
gestational age and viability . . . is directly contrary to the Court’s central holding in Casey
that a woman has the right to ‘choose to have an abortion before viability and to obtain it
without undue interference from the State’”) (quoting Casey, 505 U.S. at 846); Edwards v.
Beck, 786 F.3d 1113, 1116–17 (8th Cir. 2015) (per curiam) (enjoining a law “banning abortions
after 12 weeks’ gestation” because it “prohibits women from making the ultimate decision to
terminate a pregnancy at a point before viability”); Isaacson v. Horne, 716 F.3d 1213, 1226
(9th Cir. 2013) (“There is therefore no doubt that the twenty-week law operates as a ban on
pre-viability abortion and that it cannot stand under the viability rule enunciated repeatedly
by the Supreme Court, this circuit, and other circuits.”); id. at 1233–34 (Kleinfeld, J.,
concurring) (law barring pre-viability abortions “unquestionably put[s] a ‘substantial
obstacle’ in the path of a woman seeking to abort a previability fetus”); Greenville Women’s
Clinic v. Bryant, 222 F.3d 157, 165 (4th Cir. 2000) (“[Casey] reaffirmed the ‘essential holding’
of Roe—that a woman has a constitutional right to ‘choose to have an abortion before viability
and to obtain it without undue interference from the State.’”) (quoting Casey, 505 U.S. at
846); Jane L. v. Bangerter, 102 F.3d 1112, 1117–18 (10th Cir. 1996) (“[S]ection 302(3) actually
operates as an impermissible ban on the right to abort a nonviable fetus.”); Sojourner T v.
Edwards, 974 F.2d 27, 30 (5th Cir. 1992) (“[Casey] held that before viability, a State’s
interests are not strong enough to support a prohibition of abortion.”); id. at 31 (Garza, J.,
concurring specially) (same); Little Rock Family Planning Servs. v. Rutledge, 397 F. Supp. 3d
1213, 1270 (E.D. Ark. 2019); Bryant v. Woodall, 363 F. Supp. 3d 611, 627–28 (M.D.N.C. 2019);
EMW Women’s Surgical Ctr. v. Beshear, 2019 WL 1233575, at *1 (W.D. Ky. Mar. 15, 2019).
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concludes that, as a ban on abortions that Mississippi admits occur prior to
viability, HB 1510 is inconsistent with Casey.
I am aware of no judicial opinion that reads Casey differently, and
Mississippi and its amici provide none. To the contrary, Mississippi concedes
that HB 1510 would be held unconstitutional in every circuit that has
addressed such issues to date. I am forced to agree with the majority’s
application of Supreme Court precedent to this recently enacted and sincerely
motivated law, and to conclude that we are duty bound to affirm the judgment.
For its part, Mississippi asserts various interests to justify the law.
Among them, the State most vigorously presses its interest in avoiding pain to
the unborn baby. To support that interest, Mississippi proffered the
declaration of an expert, Dr. Maureen Condic, a professor of neurobiology at
the University of Utah who specializes in the development and regeneration of
the nervous system.
In her declaration, Dr. Condic explained that, based on current scientific
evidence, “[d]uring the time period covered by [HB 1510], the human fetus is
likely to be capable of conscious pain perception.” She indicated that fetuses
may be able to feel pain as early as ten weeks from the last menstrual period
(LMP), when “[t]he neural circuitry responsible for the most primitive response
to pain . . . is in place.” At that point, the “fetus . . . actively withdraw[s]
from . . . painful stimulus.” That is consistent with the Legislature’s finding
that, “[a]t twelve weeks [LMP], an unborn human being . . . senses stimulation
from the world outside the womb.” Gestational Age Act, ch. 393, § 1(2)(b)(i)(6),
2018 Miss. Laws 606, 607.
Furthermore, Dr. Condic noted that it was “universally accepted” that a
fetus has a neural network “capable of pain perception” at some point “between
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[14–20] weeks” LMP. She then discussed various studies showing that fetuses
physically respond to painful experiences, including “a recent review of the
evidence” that “conclude[d] that from the [fifteenth week LMP] onward, ‘the
fetus is extremely sensitive to painful stimuli, and that this fact should be
taken into account when performing invasive medical procedures on the
fetus.’” Based on that evidence, Mississippi argues that nontherapeutic (that
is, medically unnecessary) abortions after fifteen weeks LMP are “barbaric”
and “brutal and inhumane” and, as such, undermine the State’s interest in the
life of the unborn child. 3
A State has an unquestionably legitimate (if not compelling) interest in
preventing gratuitous pain to the unborn. Consider how the Supreme Court
has construed the Cruel and Unusual Punishments Clause of the Eighth
Amendment to forbid executions of convicted murderers that involve
unnecessary pain. See Baze v. Rees, 553 U.S. 35, 49 (2008) (plurality opinion)
(“Our cases recognize that subjecting individuals to a risk of future harm—not
simply actually inflicting pain—can qualify as cruel and unusual
punishment.”). It would be surprising if the Constitution requires States to
3 Judge Jones has made similar observations: “[N]eonatal and medical science . . . now
graphically portrays, as science was unable to do 31 years ago, how a baby develops
sensitivity to external stimuli and to pain much earlier than was then believed.” McCorvey v.
Hill, 385 F.3d 846, 852 (5th Cir. 2004) (Jones, J., concurring). She noted that the record
contained “submissions from numerous individuals, each holding an MD or PhD, reporting
that unborn children are sensitive to pain from the time of conception, and relying on peer-
reviewed, scientific journals.” Id. at 852 n.6 (also citing David H. Munn et al., Prevention of
Allogeneic Fetal Rejection by Tryptophan Catabolism, 281 SCIENCE 1191 (1998), and Patrick
W. Mantyh et al., Inhibition of Hyperalgesia by Ablation of Lamina I Spinal Neurons
Expressing the Substance P Receptor, 278 SCIENCE 275 (1997)). She ultimately concluded
that, “if courts were to delve into the facts underlying Roe’s balancing scheme with present-
day knowledge, they might conclude that the woman’s ‘choice’ is far more risky and less
beneficial, and the child’s sentience far more advanced, than the Roe Court knew.” Id. at 852.
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use execution methods that avoid causing unnecessary pain to convicted
murderers, but does not even permit them from preventing abortions that
cause unnecessary pain to unborn babies.
Not surprisingly, then, members of the Supreme Court have
acknowledged that avoidance of pain is indeed a valid state interest in the
abortion context. Both Justice Blackmun and Justice Stevens have thought “it
obvious that the State’s interest in the protection of an embryo . . . increases
progressively and dramatically as the organism’s capacity to feel pain, to
experience pleasure, to survive, and to react to its surroundings increases day
by day.” Webster v. Reprod. Health Servs., 492 U.S. 490, 552 (1989) (Blackmun,
J., concurring in part and dissenting in part) (quoting Thornburgh v. Am. Coll.
of Obstetricians & Gynecologists, 476 U.S. 747, 778 (1986) (Stevens, J.,
concurring)). See also id. at 569 (Stevens, J., concurring in part and dissenting
in part) (“There can be no interest in protecting the newly fertilized egg from
physical pain or mental anguish, because the capacity for such suffering does
not yet exist; respecting a developed fetus, however, that interest is valid.”).
The State of Mississippi did not cite any of those authorities. That is
presumably because, although Casey acknowledged that “time has overtaken
some of Roe’s factual assumptions,” and that further developments in science
and medicine may warrant further legal change, the Court ultimately fixed the
line at viability, not pain. 505 U.S. at 860.
Because Casey establishes viability as the governing constitutional
standard, I am duty bound to conclude that the district court did not abuse its
discretion in forbidding discovery and fact development on the issue of pain.
But neither would it have been an abuse of discretion if the district court had
permitted discovery and fact development on the issue of pain.
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As the Federal Rules of Civil Procedure state, discovery may be
permitted for “any nonprivileged matter that is relevant to any party’s claim
or defense and proportional to the needs of the case, considering [inter alia] the
importance of the issues at stake in the action.” FED. R. CIV. P. 26(b)(1).
Relevance “encompass[es] any matter that bears on, or that could reasonably
lead to other matter that could bear on, any issue that is or may be in the case.”
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978).
Notably, nothing in the Federal Rules of Civil Procedure forecloses
discovery based on a good faith expectation of legal change. To the contrary,
the Rules expressly envision that parties may need to litigate in anticipation
of such change. See, e.g., FED. R. CIV. P. 11(b)(2) (permitting parties to make
“claims, defenses, and other legal contentions . . . warranted by existing law or
by a nonfrivolous argument for extending, modifying, or reversing existing law
or for establishing new law”); FED. R. CIV. P. 26(g)(1)(B)(i) (permitting
“discovery request[s]” that are, inter alia, “warranted by existing law or by a
nonfrivolous argument for extending, modifying, or reversing existing law, or
for establishing new law”); Mount Hope Church v. Bash Back!, 705 F.3d 418,
425 (9th Cir. 2012) (“Federal Rule of Civil Procedure 26(g)(1)(B) requires
parties seeking discovery to act . . . consistently with the rules of existing law
or with good reason to change the law.”); Builders Ass’n of Greater Chi. v. City
of Chicago, 215 F.R.D. 550, 554 (N.D. Ill. 2003) (noting that a subpoena is
unduly burdensome “if the information is wholly irrelevant under any
reasonable legal theory,” but not if it rests on “a basis for a good faith argument
for the extension, modification, or reversal of existing law”).
Federal courts in other circuits have thus permitted, as well as denied,
fact development on the issue of fetal pain. Compare Bryant v. Woodall, 2017
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WL 1292378, at *7 (M.D.N.C. Apr. 7, 2017) (permitting discovery), with MKB
Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 773 n.4 (8th Cir. 2015) (affirming an
“order limiting discovery to the issue of viability”).
So nothing prevented the district court from allowing Mississippi to
pursue discovery and to develop facts necessary to its defense—including for
the purpose of arguing for a change in precedent on appeal. Indeed, that is
what occurred in both the Kansas and Delaware trial court proceedings leading
up to the Supreme Court’s landmark ruling in Brown v. Board of Education of
Topeka, 347 U.S. 483 (1954).
Prior to Brown, two Supreme Court decisions—Plessy v. Ferguson, 163
U.S. 537 (1896) and Gong Lum v. Rice, 275 U.S. 78 (1927)—governed the
constitutionality of segregated primary and high schools. Brown v. Bd. of
Educ. of Topeka, 98 F. Supp. 797, 800 (D. Kan. 1951). Under those precedents,
any evidence that “segregation itself” would result in African American
students “receiving inferior educational opportunities . . . was immaterial to
the [constitutional] conclusion.” Gebhart v. Belton, 91 A.2d 137, 153 (Del.
1952). Yet the trial courts in both Kansas and Delaware nevertheless made
findings that segregated schools would result in “a feeling of inferiority” in
African American students—in language that all but amounted to a direct
challenge to then-governing Supreme Court precedent. See Brown, 347 U.S.
at 494 & n.10 (quoting findings).
What’s more, the Supreme Court credited those findings in Brown. The
Court noted that “[t]he effect of [segregation on African American students]
was well stated by a finding in the Kansas case by a court which nevertheless
felt compelled to rule against the [African American] plaintiffs.” Id. at 494.
And it noted that “[a] similar finding was made in the Delaware case.” Id. at
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494 n.10 (quoting finding).
In sum, in the run-up to Brown, trial courts permitted fact development,
considered the evidence, and even issued findings of fact on an issue that was
legally irrelevant under then-governing Supreme Court precedent. Nothing
prevented the district court from doing the same here.
The district court’s unwillingness to follow the path of the trial courts in
Brown may not be reversible error. But it is unfortunate. If courts grant
convicted murderers the right to discovery to mitigate pain from executions,
there’s no reason they shouldn’t be even more solicitous of innocent babies. 4
II.
Having invoked relevance to deny evidentiary development concerning
fetal pain, the district court then ignored relevance to consider a wide range of
historical matters entirely unconnected to the enactment of HB 1510 in order
to impugn the motivations of citizens and policymakers who believe in the
sanctity of life.
It is worth quoting the district court in full:
[T]his Court concludes that the Mississippi Legislature’s professed
interest in “women’s health” is pure gaslighting. In its legislative
findings justifying the need for this legislation, the Legislature
cites Casey yet defies Casey’s core holding. The State “ranks as the
state with the most [medical] challenges for women, infants, and
4 Judge Jones has drawn similar comparisons. See McCorvey, 385 F.3d at 852 (Jones,
J., concurring) (“[B]ecause the Court’s rulings have rendered basic abortion policy beyond the
power of our legislative bodies, the arms of representative government may not meaningfully
debate McCorvey’s evidence. The perverse result of the Court’s having determined through
constitutional adjudication this fundamental social policy, which affects over a million
women and unborn babies each year, is that the facts no longer matter. This is a peculiar
outcome for a Court so committed to ‘life’ that it struggles with the particular facts of dozens
of death penalty cases each year.”).
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children” but is silent on expanding Medicaid. Ryan Sit,
Mississippi has the Highest Infant Mortality Rate and is Expected
to Pass the Nation's Strictest Abortion Bill, Newsweek, March 19,
2018. Its leaders are proud to challenge Roe but choose not to lift
a finger to address the tragedies lurking on the other side of the
delivery room: our alarming infant and maternal mortality rates.
See, e.g., Lynn Evans, Maternal Deaths Still on the Increase, The
Clarion Ledger, March 31, 2018; Danielle Paquette, Why Pregnant
Women in Mississippi Keep Dying, Wash. Post, April 24, 2015.
No, legislation like H.B. 1510 is closer to the old Mississippi—the
Mississippi bent on controlling women and minorities. The
Mississippi that, just a few decades ago, barred women from
serving on juries “so they may continue their service as mothers,
wives, and homemakers.” State v. Hall, 187 So. 2d 861, 863 (Miss.
1966). The Mississippi that, in Fannie Lou Hamer’s reporting,
sterilized six out of ten black women in Sunflower County at the
local hospital—against their will. See Rickie Solinger, Wake Up
Little Susie 57 (1992). And the Mississippi that, in the early 1980s,
was the last State to ratify the 19th Amendment—the authority
guaranteeing women the right to vote. See Marjorie Julian Spruill
& Jesse Spruill Wheeler, Mississippi Women and the Woman
Suffrage Movement, Mississippi History Now.
Jackson Women’s Health Org. v. Currier, 349 F. Supp. 3d 536, 540 n.22 (S.D.
Miss. 2018). The court went on:
The Mississippi Legislature has a history of disregarding the
constitutional rights of its citizens. See, e.g., Alexander v. Holmes
Cty. Bd. of Ed., 396 U.S. 19, 20 (1969) (15 years after Brown v.
Board, Mississippi continued to maintain segregated schools,
prompting the Supreme Court to tell the State that it was “the
obligation of every school district . . . to terminate dual school
systems at once and to operate now and hereafter only unitary
schools.”); Campaign for Southern Equality v. Bryant, 791 F.3d
625, 627 (5th Cir. 2015) (striking down Mississippi’s ban on same-
sex marriage, explaining that “Obergefell, in both its Fourteenth
and First Amendment iterations, is the law of the land and,
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consequently, the law of this circuit”); ACLU v. Fordice, 969 F.
Supp. 403, 405 (S.D. Miss. 1994) (reciting how State legislature
created and funded the Sovereignty Commission “to maintain
racial segregation in the South despite orders to the contrary by
the United States Supreme Court. As the secret intelligence arm
of the State, the Commission engaged in a wide variety of unlawful
activity”); Jackson Women’s Health Organization v. Amy, 330 F.
Supp. 2d 820 (S.D. Miss. 2004) (enjoining state statute that
eliminated organization’s ability to perform abortions early in
second trimester); Campaign for Southern Equality v. Miss. Dep’t
of Hum. Serv., 175 F. Supp. 3d 691, 697 (S.D. Miss. 2016) (striking
down Mississippi statute prohibiting adoption by married gay
couples); Stewart v. Waller, 404 F. Supp. 206 (N.D. Miss. 1975)
(striking down at-large alderman election statute as purposeful
device conceived to violate the Fourteenth and Fifteenth
Amendments in furtherance of racial discrimination).
Id. at 543 n.40.
I find it deeply disquieting that a federal court would disparage the
millions of Americans who believe in the sanctity of life as nothing more than
“bent on controlling women and minorities” and “disregarding their rights as
citizens.” Those insults not only directly conflict with the Supreme Court’s
admonitions that both sides of the debate deserve respect—they are also
demonstrably incorrect.
A.
Consider, for example, the district court’s claim that it is sexist to believe
in the protection of the unborn. The Supreme Court has articulated precisely
the opposite sentiment: “Whatever one thinks of abortion, it cannot be denied
that there are common and respectable reasons for opposing it, other than
hatred of, or condescension toward (or indeed any view at all concerning),
women as a class—as is evident from the fact that men and women are on both
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sides of the issue.” Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263,
270 (1993). See also id. at 326 (Stevens, J., dissenting) (acknowledging that
“many women oppose abortion”). “Men and women of good conscience can
disagree . . . about the profound moral and spiritual implications of
terminating a pregnancy.” Casey, 505 U.S. at 850. 5
Moreover, according to a reputable survey of national opinion, more
women than men describe themselves as “pro-life.” Abortion Trends by Gender,
GALLUP, https://news.gallup.com/poll/245618/abortion-trends-gender.aspx
(last visited Dec. 2, 2019) (noting that, in 2019, 51% of women and 46% of men
in the United States self-identify as “pro-life”). Likewise, many feminists, both
past and present, view “abortion [as] part and parcel of women’s oppression.”
MARY KRANE DERR & LINDA NARANJO-HUEBL, PROLIFE FEMINISM: YESTERDAY
& TODAY 12 (Rachel MacNair ed. 1995). See also, e.g., id. at 5 (“[T]here is a
motif in feminism which began long ago and has endured to the present day.
This is the theme of abortion as an injustice against fetal life which originates
with injustice against female life.”); Brief Amici Curiae of Feminists for Life of
America; Massachusetts Citizens for Life, Inc.; Pro-Life Legal Defense Fund,
Inc.; and University Faculty for Life in Support of Petitioners, Stenberg v.
Carhart, 530 U.S. 914 (2000) (No. 99-830), 2000 WL 207161, at *1 (“[Feminists
for Life] is dedicated to securing basic human rights for all people, especially
women and children, from conception until the natural end of life. Among its
members are women who oppose [partial-birth abortion] as a threat to the lives
of women and children.”); Erika Bachiochi, Embodied Equality: Debunking
5 The district court did not acknowledge this statement from Casey. Compare Jackson
Women’s Health Org., 349 F. Supp. 3d at 540 n.22 (disparaging the Mississippi Legislature
for “defy[ing]” Casey).
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Equal Protection Arguments for Abortion Rights, 34 HARV. J.L. & PUB. POL’Y
889, 890 (2011) (“[A] growing segment of women instead echoes the views of
the early American feminists, who believed that abortion was not only an
egregious offense against the most vulnerable human beings, but that it was
also an offense against women and women’s equality.”).
B.
What’s more, the district court’s claim that it is racist to believe in the
sanctity of life is particularly noxious, considering the racial history of abortion
advocacy as a tool of the eugenics movement.
Eugenics—the concept of improving the human race through control of
the reproductive process—has frequently been associated with explicitly racist
viewpoints. “Many eugenicists believed that the distinction between the fit
and the unfit could be drawn along racial lines.” Box v. Planned Parenthood of
Ind. & Ky., Inc., 139 S. Ct. 1780, 1785 (2019) (Thomas, J., concurring)
(providing examples). Many eugenics programs, such as sterilization,
explicitly targeted minorities—as the district court rightly acknowledged.
Jackson Women’s Health Org., 349 F. Supp. 3d at 541 n.22 (noting that
“Mississippi . . . sterilized six out of ten black women in Sunflower County at
the local hospital—against their will”).
“From the beginning, birth control and abortion were promoted as means
of effectuating eugenics.” Box, 139 S. Ct. at 1787 (Thomas, J., concurring). See
also id. (“[A]bortion is an act rife with the potential for eugenic manipulation.”);
id. at 1788 (discussing Margaret Sanger’s view that birth control would help
control the African American population); id. at 1789 (“Support for abortion
can . . . be found throughout the literature on eugenics.”); DAVID T. BEITO &
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LINDA ROYSTER BEITO, BLACK MAVERICK: T.R.M. HOWARD’S FIGHT FOR CIVIL
RIGHTS AND ECONOMIC POWER 215 (2009) (noting that some African American
civil rights leaders “fretted about the racist implications of abortion”). Indeed,
among past abortion advocates were “some eugenicists [who] believed that
abortion should be legal for the very purpose of promoting eugenics.” Box, 139
S. Ct. at 1789 (Thomas, J., concurring).
Advocates of eugenics might well celebrate, then, that abortion “has
proved to be a disturbingly effective tool for implementing the discriminatory
preferences that undergird eugenics.” Id. at 1790–91 (Thomas, J., concurring)
(providing examples). See also id. at 1791 (noting that the current “abortion
ratio . . . among black women is nearly 3.5 times the ratio for white women”);
William McGurn, White Supremacy and Abortion, WALL ST. J. (Sept. 24, 2019),
https://www.wsj.com/articles/white-supremacy-and-abortion-11567460392
(discussing “why so many African-Americans, especially African-American
women, have been leaders in the pro-life cause”); id. (“Catherine Davis of the
Restoration Project . . . notes that the estimated 20 million black abortions
since Roe v. Wade in 1973 are more than the entire African-American
population in 1960.”). 6
Given the links between abortion and eugenics, accepting the district
court’s logic—connecting Mississippi’s own tragic racial history with the recent
enactment of HB 1510—means that the history of abortion advocacy must
likewise haunt modern proponents of permissive abortion policies, and infect
6 Abortion proponents have expressed similar concerns. See Elizabeth Dias & Lisa
Lerer, How a Divided Left Is Losing the Battle on Abortion, N.Y. TIMES (Dec. 1, 2019),
https://nyti.ms/34ypQkN (“If all we do as an organization is pay for abortions for low-income
people, we are eugenicists.”) (quoting Amanda Reyes, director of the Yellowhammer Fund).
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them with the taint of racism as well. So where does that leave us? Are both
sides of the abortion debate racist? I don’t imagine the district court would say
so. And if not, then the principle invoked by the district court is no principle
at all, but merely an instrument with which to bludgeon one side of the
abortion debate. 7
***
Federal judges are not elected. Yet the Constitution grants us life
tenure. That is not because we are supposed to decide cases based on personal
policy preference. It is because we swear an oath to rule based on legal
principle alone. I share in the concern, expressed by every state in this circuit,
that the district court did not discharge that duty here, and that its opinion
diminishes public confidence in the federal judiciary.
It is troubling enough to many Americans of good faith that federal
courts, without any basis in constitutional text or original meaning, restrict
7 The district court opinion not only belittles one side of the abortion debate—it also
defies our Founders’ vision of the judiciary, when it states that “[t]he fact that men, myself
included, are determining how women may choose to manage their reproductive health is a
sad irony not lost on the Court.” Jackson Women’s Health Org., 349 F. Supp. 3d at 545. To
begin with, that statement confuses the role of the courts with that of the legislative branch.
The courts did not enact HB 1510 into law—the Mississippi Legislature did. No federal judge
anywhere in the nation—and certainly none who respect the proper role of the judiciary
under our Constitution—would impose a policy like HB 1510 from the bench. See, e.g., Casey,
505 U.S. at 979 (Scalia, J., concurring in the judgment in part and dissenting in part) (“The
States may, if they wish, permit abortion on demand, but the Constitution does not require
them to do so.”). Moreover, the suggestion that a judge’s demographic background bears upon
the validity or intellectual integrity of a decision reflects a troubling view of judging. It is a
direct attack on the principle of judicial objectivity and impartiality—that judges rule based
on legal principle alone, without regard to the demographics of the parties or the judge. Our
Founders famously envisioned a judiciary capable of ruling based on “judgment,” not “will.”
THE FEDERALIST NO. 78, at 464 (Alexander Hamilton) (Kesler ed., 1999). See also, e.g., id. at
470 (“To avoid an arbitrary discretion in the courts, it is indispensable that they should be
bound down by strict rules and precedents.”).
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the ability of states to regulate in the area of abortion. But that is of course
what decades of Supreme Court precedent mandates. Accordingly, I am
required to affirm.
It adds insult to injury, however, for a federal court to go further and to
impugn the motives of those good faith Americans. When that occurs, citizens
may rightfully wonder whether judges are deciding disputes based on the Rule
of Law or on an altogether different principle. Replacing the Rule of Law with
a regime of Judges Know Better is one that neither the Founders of our country
nor the Framers of our Constitution would recognize.
I concur in the judgment.
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