Last December, a U.S. Court of Appeals for the Fifth Circuit ruled against a Mississippi law banning abortions after the 15th week of pregnancy. The federal appeals court sided with a lower judge’s ruling from 2018 that categorized the abortion ban as “unconstitutional.” 

“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,” Judge Patrick Higginbotham wrote in the ruling. 

“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 judge continued. “The law at issue is a ban. Thus, we affirm the district court’s invalidation of the law.”

But attorney generals from 18 states have cited “advances in science” that have occurred since the Supreme Court legalized abortion nationwide in 1973. Based on this reasoning, the coalition of attorney generals argues the ban should be upheld. 

Texas Attorney General Ken Paxton pointed out in an amicus brief filed this month that “much has changed since Roe.” At the time the case was decided, fetal viability was not until 28 weeks. With current advancements in medical technology, babies can be considered viable as early as 21 weeks. 

The chief law enforcement officers noted several flaws in the Fifth Circuit’s decision. Not only did it contradict the legal framework of Roe, but it also conflicts with the 1992 Planned Parenthood v. Casey and the 2020 June Medical Services ruling.  

“[I]n affirming the district court’s judgment, the Fifth Circuit applied a test that would invalidate automatically any law that might prevent some previability abortions, without regard to the State’s interest and the law’s burden.

The Fifth Circuit’s test treats the right to previability abortion as absolute such that no state interest could ever justify any limitation of abortion previability. But no other constitutional right enjoys such absolute unquestioning protection, which perhaps is why Roe and Casey do not elevate the abortion right above all others.”

Within the brief, the attorney generals acknowledge how current research heavily indicates the unborn experience pain within the second trimester, perhaps even earlier. The abortion method done at this stage of a woman’s pregnancy is commonly referred to as a Dilation & Evacuation (D & E) or “dismemberment.” 

During this type of procedure, the abortionist will use a Sopher clamp to tear the arms and legs from the baby’s body and extract the pieces from the woman’s uterus. The abortionist continues to use the grasping instrument to remove the unborn child’s organs and crush the baby’s skull. Afterward, a curette is used to scrape out any leftover body parts and remove the placenta.

“Abortion is not just another routine and victimless procedure,” Paxton said. “At 15 weeks, the fetus can feel the pain of being ripped apart during an abortion, and later-term abortions are proven to pose a greater risk to women’s health.”

“The Mississippi legislature enacted this law in accordance with the beliefs of its constituents and the precedents of the United States Court,” he said. “It should be upheld.”

Polls show that many people support strong restrictions on abortion that Roe does not allow. A 2019 NPR/PBS Marist Poll found most Americans, including those identifying as pro-choice, want abortion limited to the first three months of pregnancy, and they would be in favor of common-sense regulations. 

These types of surveys show our country’s abortion laws do not reflect the views of a majority of Americans, and it’s way past time for these radical laws to be challenged.