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Dobbs v. Jackson Women’s Health

Supreme Court Decision

The Supreme Court remanded the case back to the district court without deciding the substantive question of whether Texas has the right to limit abortions before the point of viability. The case was before the Court on an interlocutory appeal, thus allowing the justices to make a solely procedural ruling about which defendants could be named in the suit.

For now, the case against Texas will proceed in the court, with certain of the defendants dismissed and others continuing as defendants in the case. The Texas abortion regulation will remain pending a judgment in the lower court.

Read the opinion here.

Facts of the Case (Oyez):

In 2018, Mississippi passed a law called the “Gestational Age Act,” which prohibits all abortions, with few exceptions, after 15 weeks’ gestational age. Jackson Women’s Health Organization, the only licensed abortion facility in Mississippi, and one of its doctors filed a lawsuit in federal district court challenging the law and requesting an emergency temporary restraining order (TRO). After a hearing, the district court granted the TRO while the litigation proceeded to discovery. After discovery, the district court granted the clinic’s motion for summary judgment and enjoined Mississippi from enforcing the law, finding that the state had not provided evidence that a fetus would be viable at 15 weeks, and Supreme Court precedent prohibits states from banning abortions prior to viability. The U.S. Court of Appeals for the Fifth Circuit affirmed.

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Question in the Case (Oyez):

Is Mississippi’s law banning nearly all abortions after 15 weeks’ gestational age unconstitutional?

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Fifth Circuit Decision

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, 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.


On March 19, 2018, Mississippi enacted House Bill 1510, entitled the “Gestational Age Act” (“the Act”). 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. Then,

Gestational Age Act, ch. 393, § 1, 2018 Miss. Laws (codified at MISS. CODE ANN. § 41–41–191 ).

Gestational age is measured by the time elapsed since the woman’s last menstrual period (LMP).

[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.

“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[.]”

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, 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.

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.

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 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.

The district court denied the Clinic’s motion in part, allowing the State to proffer the report and thus preserve the evidentiary issue.

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.” 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.” 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.

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. 833, 860, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality opinion)).

Id .

Id. at 543–45.

Read the full opinion on CaseText.

Summary of Argument (Brief of Petitioner)

I. This Court should hold that a State may prohibit elective abortions where, as here, a rational basis supports doing so. The Constitution does not protect a
right to abortion or limit States’ authority to restrict it. On a sound view of the Constitution, a state law restricting abortion is valid if it satisfies the rational-
basis review that applies to all laws. Rational-basis review is not applied to abortion laws because this Court’s precedents subject such laws to heightened
scrutiny. This Court should overrule those precedents. Those precedents are grievously wrong, unworkable, damaging, and outmoded. Reliance inter-
ests do not support retaining them. This Court should conclude that the Act rests on a rational basis and so is constitutional. The Act reasonably furthers valid interests in protecting unborn life, women’s health, and the medical profession’s integrity. The judgment below should be reversed.

II. At minimum, this Court should reject viability as a barrier to prohibiting elective abortions and reject the judgment below. A viability rule has no constitutional basis, it harms state interests, and it produces other severe negative consequences.

Read the full brief.

Summary of Argument (Brief of Respondent)

Every version of the State’s argument amounts to the same thing: a request that the Court scuttle a half-century of precedent and invite states to ban abortion entirely. Insofar as the Court considers this argument, the Court should reject it.

I. In Casey, this Court carefully considered every argument Mississippi makes here for overruling Roe. After doing so, the Court reaffirmed the “most central
principle” of its abortion jurisprudence: that states cannot prohibit abortion until viability. Casey, 505 U.S at 871. After balancing individuals’ liberty interests and countervailing state interests, the Court reasoned that, until fetal life can be sustained outside the woman’s body, the decision whether to continue or end the pregnancy must remain hers. See id. at 870.

Thirty years later, stare decisis presents an even higher bar to upending this “rule of law and [] component of liberty.” See id. at 871. Casey is precedent
on top of precedent—that is, precedent not just on the issue of whether the viability line is correct, but also on the issue of whether it should be abandoned. And time and again, the Court has reaffirmed that it is “imperative” to retain a “woman’s right to terminate her pregnancy before viability.” Id. at 869, 871; see
also June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2135 (2020) (Roberts, C.J., concurring in the judgment).

There is no special justification for a different outcome now. Mississippi does not meaningfully engage with the personal autonomy and bodily integrity interests that underpin constitutional protection for the right to decide whether to continue a pregnancy. And once one recognizes that there is a liberty interest here that demands heightened protection, it is clear that the viability line safeguards that interest in a principled and workable way. Nor has any legal
or factual change occurred that justifies giving any less protection for that liberty interest today. To the contrary, the years since Casey have only reinforced the importance of access to legal abortion for gender equality.

II. Mississippi is forced into its extreme position because it has nothing serious to offer in place of the viability line. Instead, the impractical and unstable
alternatives the State proposes confirm that the Court was right in Casey to retain the viability line. There is no heightened scrutiny framework (stripped
of the viability rule) that lower courts could administer against the inevitable cascade of state abortion bans that would follow if the Court does anything
here other than affirm. Nor could the Court apply the State’s version of an “undue burden” approach without gutting Casey and Roe. The very essence of those decisions is the right of every individual to decide whether to continue a pre-viability pregnancy to term. The only way, therefore, to avoid inflicting pro-
found damage to individual autonomy and women’s equal status in society is to adhere to the considered judgment of the Court’s prior decisions.

Read the full brief.

About the Author

Mariam Morshedi

Mariam Morshedi

Mariam Morshedi is the Founder and Executive Director of Subscript Law. Before starting Subscript Law, she practiced civil rights law for AARP Foundation, where she litigated housing, consumer and disability rights issues.

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