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Analysis: Mississippi abortion bills invite more litigation

February 15, 2019

JACKSON, Miss. (AP) — Mississippi lawmakers acknowledge they are inviting a new court fight over banning most abortions at about six weeks into pregnancy, even as the state remains enmeshed in a fight over a 15-week ban.

Soon after Republican Gov. Phil Bryant signed the 15-week ban into law in 2018, the only abortion clinic in the state filed a lawsuit. A federal judge put the law on hold and ruled months later that the law was unconstitutional. Mississippi is asking an appeals court to overturn that ruling.

Now, emboldened by two new conservative justices on the U.S. Supreme Court, abortion opponents in Mississippi and other states are trying to enact laws that would ban most abortions once a fetal heartbeat can be detected. That is about six weeks into pregnancy, when some women still may not know they are pregnant.

Bryant promises to sign a heartbeat bill into law, and that will bring two immediate effects: more litigation and more election-year speeches by politicians running for legislative and statewide seats.

Abortion-rights supporters are guaranteed to file another lawsuit if Mississippi puts the six-week ban into law.

Abortion opponents are preparing for the legal fight. They are looking for a case that could make its way up to the U.S. Supreme Court in an effort to either reverse Roe v. Wade, the 1973 ruling that established a nationwide right to abortion, or uphold specific state laws that would undermine Roe.

When U.S. District Judge Carlton Reeves blocked Mississippi’s 15-week ban in November, he wrote: “The record is clear: States may not ban abortions prior to viability.”

Reeves wrote that viability must be determined by trained medical professionals, and the “established medical consensus” is that viability typically begins at 23 to 24 weeks after the pregnant woman’s last menstrual period. A full-term pregnancy is 40 weeks.

The Mississippi House and Senate passed separate heartbeat bills last week, House Bill 723 and Senate Bill 2116 . They must agree on a single bill to send Bryant, who is term-limited and cannot seek re-election this year.

The two candidates who have raised the most money in the governor’s race, Republican Lt. Gov. Tate Reeves and Democratic Attorney General Jim Hood, both say they oppose abortion.

“A beating heart means life has begun and should be protected,” Reeves said in a statement after the Senate voted Wednesday. “This bill is another step in our work to make Mississippi the safest place in America for an unborn child.”

The attorney general’s office is defending Mississippi’s 15-week abortion ban, and Hood says it would also defend the “heartbeat” bill if it becomes law.

“I’ve defended every bill that the Legislature has passed on abortion. That’s my duty as attorney general. I don’t personally believe that abortion is right,” Hood said at a public affairs forum Feb. 11. He said, however, that some politicians try to “dupe” people into thinking the state can enact abortion restrictions unchecked.

“It’s awful to try to mislead good, churchgoing people who vote on one issue, to mislead them and tell them, ‘I’m going to stop it,’” Hood said.

He said the U.S. Supreme Court will ultimately decide whether abortion laws passed by Mississippi and other states are constitutional.

Heartbeat bills have been filed in previous years but have died in committees in the Mississippi Legislature. Republican state Rep. Robert Foster of Hernando, who is now running for governor, filed one in 2018.

“It shouldn’t have taken an election year to get this desperate piece of legislation out,” Foster wrote Wednesday on Twitter. “Imagine the head start we could have had if they would have let this bill out of committee in years past.”

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Emily Wagster Pettus has covered Mississippi government and politics since 1994. Follow her on Twitter: http://twitter.com/EWagsterPettus .