Mississippi Enacts Blatantly Unconstitutional Abortion Ban

CREDIT: AP Photo/Manuel Balce Ceneta

On Wednesday afternoon, Mississippi Gov. Phil Bryant (R) signed a measure to criminalize abortion after 20 weeks of pregnancy — even though the only abortion clinic in the state doesn’t perform the procedure after 16 weeks. And because of the way the legislation is worded, it’s actually a harsher restriction than the other 20-week bans that are currently in place in other states.

The other states with 20-week bans on the books calculate gestation beginning when the egg is fertilized and implanted in the uterine lining. After that point, women have a 20-week window to access legal abortion services. But Mississippi’s new law starts counting from the woman’s last menstrual period — about two weeks before fertilization. That ends up shaving off some time from the available window for legal abortion care.

Arizona is the only other state that’s enacted a 20-week ban that calculates gestation in this way. And last year, that law was permanently struck down by the U.S. Court of Appeals for the Ninth Circuit. The panel of judges determined that Arizona’s stringent ban was blatantly unconstitutional, since Roe v. Wade guarantees legal abortion services up to about 24 weeks of pregnancy.

Since Mississippi’s sole abortion clinic doesn’t even perform later abortion procedures, it’s clear that the legislature’s decision to pass a 20-week ban isn’t intended to have any real policy impact. Indeed, the most recent data from the Mississippi Department of Health confirms that only two abortions were performed after 20 weeks in 2012, likely in a hospital.

Instead, the legislative move is intended to fit into the broader “fetal pain” strategy. Abortion opponents claim that fetuses can feel pain after 20 weeks of pregnancy, and this scientifically disputed concept has allowed them to successfully impose unconstitutional limits on later abortion in 20 different states. Fetal pain measures are specifically intended to slowly chip away at the boundaries of Roe v. Wade, and so far, they’ve been working.

Legislatures’ willingness to pass harsh abortion laws is often directly related to the politics of the federal appeals court district they fall under. For instance, Mississippi is under the jurisdiction of a much more conservative federal appeals court than Arizona, and abortion opponents in the state are counting on that working in their favor.