A federal judge in Mississippi expressed deep skepticism on Tuesday about a state law that bans abortion as early as six weeks of pregnancy, sending a signal that attempts across the country to pass near total bans on abortion might not easily withstand judicial scrutiny.
During a hearing, US District Judge Carlton Reeves expressed anger at times, especially over the fact that the law has no exception for rape or incest. He pointed out that six months ago he struck down a 15-week ban and the legislature responded with an even more restrictive law, suggesting the new law "smacks of defiance" to the court.
"You said, 'We can't do 15 weeks so by God we will do six weeks,'" Reeves said at one point. He then rhetorically asked if the state legislature would call a special session and then pass a four-week or two-week ban.
Supporters of abortion rights say the law collides with Supreme Court precedent, violating a woman's right to seek an abortion prior to viability.
The hearing comes as emboldened Republican-led states across the country are attempting to push through restrictive laws with the hope of overturning or cutting back on the landmark 1973 opinion, Roe v. Wade. Similar six-week bans have been introduced in 15 states although none are currently in effect.
Last fall, Reeves struck down the Mississippi law that banned abortions after 15 weeks of pregnancy, holding that the state was "wrong on the law" and that its Legislature's "professed interest" in women's health amounted to "pure gaslighting."
Tuesday, the judge also read out loud part of the Supreme Court's 1992 ruling in Casey v. Planned Parenthood, the decision which upheld the core holding of Roe v. Wade.
Reeves asked if the Supreme Court had ever sustained a "previability" ban and he noted that sometimes a woman does not even know she is pregnant as early as six weeks.
At the end of arguments, just before he said he would take the case under advisement, Reeves pressed the state on the fact that the law had no exception for rape or incest.
"So a child who is raped at 10 or 11 -- who has not revealed to her parents that the rape has occurred... the child must bring this fetus to term under the statute?" he asked.
In court papers, Hillary Schneller of the Center for Reproductive Rights, representing the Jackson Women's Health Organization, said that at six weeks "no embryo is capable of surviving for a sustained period outside the womb, with or without medical intervention." She pointed out that women who are breastfeeding or who use hormonal contraceptives may not realize they have missed a period.
"The Supreme Court has reaffirmed many times over nearly 50 years, and as recently as 2016, that a woman has the right to decide whether to continue her pregnancy at any point before viability," said Schneller.
The law is slated to go into effect on July 1. State officials, including Thomas E. Dobbs of the Mississippi State Health Office, say it was passed to further the state's interest in regulating the medical profession in order to "promote respect for life."
They acknowledge Supreme Court precedent on viability but argue that once a fetal heartbeat is detected, the "chances of the fetus surviving to full term are 95%-98%."
The law is meant to "prohibit procedures that destroy the life of a whole, separate, unique living human being," the officials say in court papers. It does not amount to a total ban on abortion in part because sometimes a fetal heartbeat is not detectable until as late as 12 weeks, particularly if an abdominal ultrasound is performed, they argue.
Because the bill allows for exceptions, it can't be compared to previous opinions, Mississippi argues. Since 1992, the 5th US Circuit Court of Appeals "has not decided a case involving a law which prohibited some but not all abortions, and has not considered a law that restricts abortions based on the existence of a fetal heartbeat or beyond a specific gestational age," the state says.
"Instead of banning abortion, S.B. 2116 regulates the time period during which abortions may be performed," the filing adds. "As such, it is akin to laws regulating the time, place, or manner of speech, which have been upheld as constitutional.
Asked by Reeves about the fact that the Supreme Court has yet to down a previability law, a state lawyer responded in court by saying the '"fact that it hasn't happened yet" doesn't mean that it would not.
Reeves displayed a keen understanding of the current composition of the court and even made clear that he had been paying attention last week when the conservative majority struck down some 40-year-old precedent in a case unrelated to abortion. He wondered out loud if that decision, and other recent ones where the conservatives struck precedent in the area of voting rights, campaign finance and labor unions should impact his thinking.
