Earlier this week, LifeNews.com and other online news services reported that the US Supreme Court has agreed to hear Dobbs v. Jackson Women’s Health Organization, a legal case addressing a law that bans abortions after 15 weeks. The case will be heard in the autumn of 2021.

The 2018 Mississippi law prohibits abortions after 15 weeks except when there are risks to the life or physical health of the mother, or fatal fetal anomalies…

Mississippi’s law highlights a conflict between the Supreme Court’s ruling in Roe v. Wade and the court’s repeated affirmation in subsequent cases that states have a legitimate interest in limiting abortion and protecting “vulnerable and innocent life” from the moment of conception.

“Every human life is valuable, and Mississippi’s law is a commonsense step toward protecting unborn children and their mothers from the harms of late-term abortion,” said Alliance Defending Freedom Senior Counsel Denise Harle. “The law protects the life of a baby who can already move around and kick in her mom’s womb— a child who has a heartbeat, can taste what her mom eats, and can experience pain. And the law also protects women, since late-term abortions grow increasingly dangerous to the mother’s health. Women and their children both deserve real health care; that’s why we’re glad the Supreme Court has decided to take up this matter.” (ref)

This Forum reported last fall that SCOTUS would hear this case, but the timeline was pushed forward to this week.

Consideration of Mississippi case rescheduled

The court had previously been scheduled to discuss on Friday a challenge to a Mississippi ban on abortion after 15 weeks of pregnancy, but that petition has been rescheduled and will be discussed at some future conference. Read more.

Amy Coney Barrett sworn in by Justice Clarence Thomas, 10-26-20 - photo credit: whitehouse.gov

Only hours after the Senate Judiciary Committee voted to approve ACB’s nomination, Mississippi’s Attorney General petitioned SCOTUS to review the state’s 15-week abortion ban. The AG, Lynn Fitch, had initially asked for this review last June.

This time she referenced the high court’s summer 2020 decision on June Medical Services v. Russo that favored abortion providers as it ruled that doctors need no admitting privileges with a hospital. Though it disappointed pro-lifers, the decision has since been cited in other appeals, quoting Justice Roberts’ opinion, and helping to uphold legislation such as Ky’s Transfer Agreement Law.

Roberts wrote that lawmakers have wide discretion “in areas where there is medical and scientific uncertainty” and that weighing the “costs and benefits of an abortion regulation” was not necessarily a job for the courts. The Circuit Judge for the Ky case, Joan Larsen, ruled that states must step in to regulate clinics where a need for safety is discovered.

So, Ky’s TA case helped to promote the need for clarification by SCOTUS on certain issues. For example: Which legal precedent should be applied to protection of the woman’s health?

Ky AG Daniel Cameron signed an Amicus Brief last summer in support of the Mississippi case, questioning: “Whether an abortion law is necessarily unconstitutional, regardless of the State’s interest or the actual burden on women, when it theoretically could prevent a small number of women from obtaining a previability abortion.” Viability is a Roe v. Wade stumper.

The Mississippi Free Press reported on Wed., Oct. 27 (2020):

Mississippi’s 15-week abortion ban could soon make its way to the U.S. Supreme Court, with the court set to decide whether to hear it on Friday. The court announced plans to consider hearing the case yesterday evening—just as the U.S. Senate voted on a party-line basis to confirm President Donald Trump’s third pick to the high court, Amy Coney Barrett.

Lower courts in 2018 and 2020 found the Mississippi law unconstitutional under the precedent Roe v. Wade set in 1973. In court filings, though, Mississippi Attorney General Lynn Fitch is asking the nation’s high court to revisit and overturn one of Roe v. Wade’s key holdings: that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before (fetal) viability.”

The lower courts ruled that the Mississippi law banning abortions at 15 weeks, known as “The Gestational Age Act,” was unconstitutional for that reason; medical science says fetuses generally become viable outside the womb at around 24 weeks.

“This Court should grant the petition, hold that it is illogical to impose a ‘rigid line’ allowing state regulation after viability but prohibiting it before viability” and “uphold the Gestational Age Act,” Attorney General Lynn Fitch wrote in a filing with the U.S. Supreme Court over the summer.

The current case, Fitch wrote in a Supreme Court filing, is “an ideal vehicle to promptly resolve” questions about Roe v. Wade and the Supreme Court’s position on abortion rights…

Read more.

Whatever became of the Heartbeat (SB9) and Anti-eugenics (HB5) bills that became law last March? Will discovery be allowed for the state of Kentucky to defend these laws?

You may be asking, what is discovery in a legal context? Here is Dictionary.Law.com’s definition:
n. The entire efforts of a party to a lawsuit and his/her/its attorneys to obtain information before trial through demands for production of documents, depositions of parties and potential witnesses, written interrogatories (questions and answers written under oath), written requests for admissions of fact, examination of the scene and the petitions and motions employed to enforce discovery rights. The theory of broad rights of discovery is that all parties will go to trial with as much knowledge as possible and that neither party should be able to keep secrets from the other (except for constitutional protection against self-incrimination). Often much of the fight between the two sides in a suit takes place during the discovery period.

Why has discovery not been permitted so far? Here begins a brief blog series to examine the EMW Clinic legal case against these laws.

We will look at documents filed by our attorneys and EMW’s on the PACER website. PACER is the Public Access to Court Electronic Records website that lets anyone create a login and search for case information.

If discovery is permitted by the judge, it is sure to be enlightening, but we may be on the brink of an opposing conclusion. Nevertheless, assuming Gov. Bevin is re-elected, the case probably will be pursued to the Appeals Court.

MANY ATTORNEYS

Four law entities are pursuing the case to quash HB5 and SB9 on behalf of the EMW clinic:

• The American Civil Liberties Union Foundation, NY, NY
• Ackerson & Yann, PLLC , Louisville, KY
• ACLU of Kentucky Foundation, Louisville, KY
• O’Melveny & Myers, NY, NY

Kentucky is defending this case with attorney services from the Office of the Governor and the Cabinet for Health and Human Services since our Attorney General refused to defend them.

The opposition has termed HB5 the Reason Ban and SB9 the 6-week Ban. They have lumped these together in their suit that initially sought both a temporary restraining order and/or a temporary injunction as well as a permanent injunction, and now requests a summary judgment— asking the judge to reject these laws as unconstitutional, to dismiss the suit, and to permanently enjoin the defendants (our state) from "enforcing, attempting to enforce, threatening to enforce, or otherwise requiring compliance with SB9 and HB5…". (Enjoin in a legal context means to order.) That means never again could these issues be revisited in any legislation our senators or representatives propose.

The Judge in charge of this case is David J. Hale. From the Ballotpedia website, we read: …President Barack Obama nominated Hale to fill a vacancy on the United States District Court for the Western District of Kentucky. Hale was confirmed to the court on December 3, 2014, by a voice vote of the Senate.