Jackson Women - S Health Org. v. Dobbs - 951 F.3d 246

Jackson Women's Health Org. v.
Dobbs
United States Court of Appeals for the Fifth Circuit
February 20, 2020, Filed
No. 19-60455
Reporter
951 F.3d 246 *; 2020 U.S. App. LEXIS 5226 **; 2020 WL 831758
BILOXI, MISSISSIPPI, Amicus Curiaes: Christian Janet
JACKSON WOMEN'S HEALTH ORGANIZATION, on
Strickland, Schwartz, Orgler & Jordan, P.L.L.C., Biloxi,
behalf of itself and its patients; SACHEEN CARR-
MS; Stephen James Carmody, Esq., Brunini, Grantham,
ELLIS, M.D., M.P.H., on behalf of herself and her
Grower & Hewes, P.L.L.C., Jackson, MS.
patients, Plaintiffs-Appellees v. THOMAS E. DOBBS,
M.D., M.P.H., in his official capacity as State Health For INFORMATION SOCIETY PROJECT AT YALE
Officer of the Mississippi Department of Health; LAW SCHOOL, Amicus Curiae: Priscilla Joyce Smith,
KENNETH CLEVELAND, M.D., in his official capacity as Esq., Yale Law School, Brooklyn, NY.
Executive Director of the Mississippi State Board of
For CONSTITUTIONAL LAW SCHOLARS, Amicus
Medical Licensure, Defendants-Appellants
Curiae: Stuart Sarnoff, O'Melveny & Myers, L.L.P., New
York, NY.
Prior History: [**1] Appeal from the United States
District Court for the Southern District of Mississippi. For STATE OF CALIFORNIA, STATE OF COLORADO,
STATE OF CONNECTICUT, STATE OF DELAWARE,
Jackson Women's Health Org. v. Dobbs, 379 F. Supp.
STATE OF HAWAII, STATE OF ILLINOIS, STATE OF
3d 549, 2019 U.S. Dist. LEXIS 88241 (S.D. Miss., May
MAINE, STATE OF MARYLAND, STATE OF
24, 2019)
MASSACHUSETTS, STATE OF MICHIGAN, STATE
OF MINNESOTA, STATE OF NEVADA, STATE OF
Counsel: For JACKSON WOMEN'S HEALTH
NEW MEXICO, STATE OF NEW YORK, STATE OF
ORGANIZATION, on behalf of itself and its patients,
OREGON, STATE OF PENNSYLVANIA, STATE OF
SACHEEN CARR-ELLIS, M.D., M.P.H., on behalf of
RHODE ISLAND, STATE OF VERMONT, STATE OF
herself and her patients, Plaintiff - Appellee: Hillary
Schneller, Center for Reproductive Rights U.S. VIRGINIA, STATE OF WASHINGTON, DISTRICT OF
Litigation, New York, NY; Aaron Sean Delaney, Caitlin COLUMBIA, Amicus Curiaes: Karli Eisenberg, Office of
Grusauskas, Claudia Hammerman, Alexia Korberg, the Attorney General, Sacramento, CA.
Paul, Weiss, Rifkind, Wharton & Garrison, L.L.P., New For MISSISSIPPI IN ACTION, WOMEN WITH A
York, NY; Crystal Johnson Geise, Paul, Weiss, Rifkind, VISION, BLACK WOMEN'S HEALTH IMPERATIVE, IN
Wharton & Garrison, L.L.P., Washington, DC; Robert OUR OWN VOICE: NATIONAL BLACK WOMEN'S
Bruce McDuff, Esq., Jackson, MS; Beth Levine REPRODUCTIVE JUSTICE AGENDA, LIFT
Orlansky, Mississippi Center for Justice, Jackson, MS; LOUISIANA, NATIONAL ASIAN [**3] PACIFIC
Julie Rikelman, Esq., Center for Reproductive Rights, AMERICAN WOMEN'S FORUM, NATIONAL BIRTH
New York, NY. EQUITY COLLABORATIVE, SISTERREACH,
SISTERSONG, AFIYA CENTER, REPRODUCTIVE
For THOMAS E. DOBBS, M.D., M.P.H., in his official
JUSTICE ACTION COLLECTIVE (REJAC), Amicus
capacity as State Health Officer of the Mississippi
Curiaes: Claude Szyfer, Stroock, Stroock & Lavan,
Department of Health, KENNETH CLEVELAND, M.D.,
L.L.P., New York, NY.
in his official capacity as Executive Director of the
Mississippi State Board of Medical Licensure, For SOCIETY FOR MATERNAL-FETAL MEDICINE,
Defendant - Appellant: Paul Eldridge Barnes, Esq., Amicus Curiae: Janice Mac Avoy, Alexis Casamassima,
Office of the Attorney General for the State of Alexis Fallon, Fried, Frank, Harris, Shriver & Jacobson,
Mississippi, Jackson, MS; Wilson Douglas Minor, Esq., L.L.P., New York, NY.
Office of the Attorney General for the State of
Mississippi, [**2] Jackson, MS. Judges: Before KING, COSTA, and HO, Circuit Judges.
For ROMAN CATHOLIC DIOCESE OF JACKSON,
MISSISSIPPI, ROMAN CATHOLIC DIOCESE OF Opinion
Page 2 of 2
951 F.3d 246, *246; 2020 U.S. App. LEXIS 5226, **3
seeking an abortion because there are indications the

child might have Down Syndrome), Senate Bill 2116
[*248] PER CURIAM: bans abortions at a previability stage of pregnancy
regardless of the reason the abortion is sought. This
In 2018, Mississippi enacted a law prohibiting abortions, case thus does not require us to assess the
with limited exceptions, after 15 weeks' gestational age. constitutionality of abortion laws that prohibit abortions
A district court enjoined the law, and we recently upheld performed using certain procedures or sought for a
that injunction. Jackson Women's Health Org. v. Dobbs, particular reason.
945 F.3d 265, 274, 277 (5th Cir. 2019) (Dobbs I). The
15-week law, we concluded, is not a mere regulation of The preliminary injunction the district court granted is
previability abortions subject to the "undue burden" test AFFIRMED.
of Planned Parenthood of Southeastern Pennsylvania v.
Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d
End of Document
674 (1992). Dobbs I, 945 F.3d at 273-74. Instead, the
law is a ban on abortion after 15 weeks, "which Casey
does not tolerate." Id. at 274. Such a ban is
unconstitutional under Supreme Court precedent
without resort to the undue burden balancing test. Id.;
see also Casey, 505 U.S. at 879 (holding that "a State
may not prohibit any woman from making the ultimate
decision to terminate her pregnancy before viability").
In 2019, Mississippi enacted another abortion law—the

one this case [**4] is about. Senate Bill 2116 makes it a
crime to perform an abortion, with exceptions only to
prevent the death of, or serious risk of "substantial and
irreversible" bodily injury to, the patient, after a "fetal
heartbeat has been detected."'''Fetal heartbeat' means
cardiac activity or the steady and repetitive rhythmic
contraction of the fetal heart within the gestational sac."
The parties disagree about when that activity occurs
during a pregnancy. The clinic contends it occurs at six
weeks. Mississippi argues it can occur anywhere
between six and twelve weeks. But all agree that
cardiac activity can be detected well before the fetus is
viable. That dooms the law. If a ban on abortion after 15
weeks is unconstitutional, then it follows that a ban on
abortion at an earlier stage of pregnancy is also
unconstitutional.
Indeed, after we held that the 15-week ban is

unconstitutional, Mississippi conceded that the fetal
heartbeat law must also be. As our earlier decision
explained, a ban on abortion is different from a law
prohibiting certain methods of abortion. See Dobbs I,
945 F.3d at 273-74 (distinguishing Gonzales v. Carhart,
550 U.S. 124, 127 S. Ct. 1610, 167 L. Ed. 2d 480
(2007)). And although Mississippi analogizes its law to
ones that prohibit abortions sought for certain
reasons, [**5] see, e.g., Preterm-Cleveland v. Himes,
944 F.3d 630 (6th Cir. 2019) (granting rehearing en
banc to address constitutionality of an Ohio law that
criminalizes abortion if the provider knows the woman is

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Jackson Women's Health Org. v.

seeking an abortion because there are indications the

In 2019, Mississippi enacted another abortion law—the

Indeed, after we held that the 15-week ban is

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