945 F.3d 265
5th Cir.2019Background
- Mississippi enacted the Gestational Age Act (HB 1510) banning abortions after 15 weeks’ gestation except for medical emergencies or severe fetal abnormality.
- Jackson Women’s Health Organization (the Clinic) and a physician sued the State the day the law was signed; the district court issued a temporary restraining order.
- The district court limited discovery to the single issue of viability and excluded expert evidence the State characterized as addressing fetal pain rather than viability.
- On summary judgment the district court found (and the State conceded) that viability is impossible at 15 weeks LMP and that the Act therefore prohibits some pre-viability abortions; the court permanently enjoined the Act.
- The Fifth Circuit affirmed: under Roe/Casey the State may not ban pre-viability abortions, so the Act is unconstitutional; the court also upheld the district court’s discovery and injunctive-ruling choices.
- Judge Ho concurred in the judgment (agreeing precedent required affirmance) but criticized the district court’s tone and discussed that discovery on fetal pain could be permissible though not outcome-determinative under existing precedent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Act is an unconstitutional ban on pre-viability abortions | The Act bars some abortions before viability and therefore violates the woman’s right to choose under Roe/Casey | The Act is a time-period regulation (not a ban), furthers legitimate interests (maternal health, fetal pain/dignity) and should be evaluated under the undue-burden test | Held: The Act is a ban on pre-viability abortions; Casey forbids such bans, so the Act is unconstitutional |
| Whether the district court abused its discretion by limiting discovery to viability | Limiting discovery was appropriate because viability is dispositive; other state-interest evidence is legally irrelevant | Limitation was an abuse because the State should develop the record on fetal pain and other interests to attempt to change or distinguish precedent | Held: No abuse of discretion — under controlling precedent state interests cannot justify a pre-viability ban, so limiting discovery was within the court’s discretion |
| Whether the State’s asserted interests (fetal pain, dignity, maternal health) can justify the law under Gonzales/Casey | State: Gonzales shows some pre-viability regulations are permissible; here interests justify a narrow pre-viability restriction | Clinic: Casey fixes viability as the line; state interests cannot support a prohibition before viability | Held: Casey’s viability rule controls; Gonzales (a method/regulation case) does not permit a pre-viability ban, so State interests cannot save the Act |
| Scope of relief — facial injunction and standing/as‑applied challenge | State: Relief should be limited as‑applied because the Clinic doesn’t provide abortions after 16 weeks; Clinic lacks standing to seek broader relief | Clinic: Act invalid as to all women for whom it is an actual restriction; practical effect identical given Clinic is the only provider | Held: Facial injunction appropriate; Act invalid as to those for whom it is an actual restriction (here effectively all impacted Mississippi women) and district court did not abuse its remedial discretion |
Key Cases Cited
- Roe v. Wade, 410 U.S. 113 (constitutional right to pre-viability abortion)
- Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (viability as the constitutional demarcation and undue-burden standard)
- Gonzales v. Carhart, 550 U.S. 124 (upholding a method-specific ban under undue-burden framework)
- Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (application of undue-burden analysis to abortion regulations)
- Isaacson v. Horne, 716 F.3d 1213 (9th Cir.) (invalidating a pre-viability gestational ban)
- MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768 (8th Cir.) (invalidating early‑gestation ban; affirming discovery limited to viability)
- Edwards v. Beck, 786 F.3d 1113 (8th Cir.) (invalidating a 12‑week ban as pre‑viability prohibition)
- Jane v. Bangerter, 102 F.3d 1112 (10th Cir.) (invalidating a pre‑viability ban)
- June Medical Servs. v. Gee, 905 F.3d 787 (5th Cir.) (facial‑challenge framework for abortion statutes in this circuit)
- Colautti v. Franklin, 439 U.S. 379 (viability determination cannot be reduced to a single statutory factor)