Why Mississippi Might Want to Be Sued Over Abortion

When the governor signs what will be the nation's strictest abortion ban, lawsuits are expected. Some say that was the point.
by | March 13, 2018
An abortion opponent calls out to patients while escorts secure signs on the front gates to prevent her from visually confronting patients at Mississippi's only abortion clinic. (AP/Rogelio V. Solis)

Mississippi is poised to pass the nation's strictest abortion ban this week. It will outlaw the procedure -- with no exceptions for rape or incest -- at 15 weeks.

Seventeen states have a 20-week abortion ban, but no other state has successfully enacted an abortion ban earlier than that.

"Mississippians are committed to protecting the lives of unborn children, and this law will be a major step in accomplishing that goal," said Lt. Gov. Tate Reeves after the Senate passed the measure last week. "I am committed to making Mississippi the safest place in America for an unborn child."

The Jackson Women’s Health Organization, the state's only clinic that performs abortions, already limits the procedure to 16 weeks, so a 15-week ban might not impact abortion access much. Women’s reproductive health experts say the law's supporters may have instead intended to challenge abortion rights throughout the country.

“I think the real aim here is to instigate a legal challenge that would put abortion before the U.S. Supreme Court since abortion opponents are anticipating that in the next few years there will be a more conservative U.S. Supreme Court that will be more open to curtailing abortion rights,” says Elizabeth Nash, state policy expert for the Guttmacher Institute, which supports abortion rights.

Diane Derzis, the owner of the Jackson Women’s Health Organization, said she intends to sue as soon as the law goes into effect. Republican Gov. Phil Bryant's office said he will sign the bill into law this week, and it would take effect immediately.

“These laws have forced women to make two trips to Jackson to have a simple medical procedure done. They have to take off work, find gas money. It’s a tough place if you’re poor,” Derzis told Mississippi Today. 

Mississippi Attorney General Jim Hood, a Democrat, told Politico that he thinks the law will be tough to defend since federal courts have blocked a 12-week ban in Arkansas and a six-week ban in North Dakota. The constitutionality of an abortion ban before 20 weeks is in question largely because a fetus cannot survive outside the womb before that.

Mississippi is one of six states with only one abortion provider. Advocates of abortion rights call these kind of laws TRAP laws, or targeted regulation of abortion providers. By placing more administrative burdens on abortion providers, it can eventually become too costly for them to keep their doors open.

For example, the Texas law that required abortion clincs to meet hospital-like standards caused more than half of the clinics across the state to close. That law was later overturned by the U.S. Supreme Court in 2016.

Although the new law will have no exceptions for rape or incest, it will waive the 15-week rule if the mother's life is in danger or if the fetus has health problems that would prevent it from surviving outside the womb.

Democrats in the legislature offered an amendment that would have provided child care and health care to women who were unable to get an abortion after 15 weeks. It was rejected.