State Attorneys General Band Together to Fight Pro-Life Law

News: Commentary
by Bruce Walker  •  •  April 16, 2019   

Michigan AG Dana Nessel among those opposing Fetal Heartbeat Law

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Twenty-one state attorneys general have filed a brief to challenge Mississippi's Gestational Age Act (GAA), which bans abortions after 15 weeks with exceptions for severe fetal abnormalities or medical emergencies. Michigan's Dana Nessel is the latest attorney general to join the coalition, stating in an April 15 press release "that state laws cannot prohibit a woman from her constitutionally protected right under Roe v. Wade to terminate her pregnancy before viability."

Mississippi Gov. Phil Bryant signed the GAA bill into law in March 2018. Bryant explicitly declared his intention "to end abortion in Mississippi" in his 2014 State of the State address.

Bryant was first elected to the governorship in 2011. He was reelected in 2015 by approximately two-thirds of Mississippi voters. His state limits governors to two terms, meaning 2019 will be his last full year in office. During his gubernatorial tenure, Bryant has championed religious freedoms in both the private and public sectors.

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Mississippi's only abortion provider, Jackson Women's Health Organization, filed a legal suit against the GAA and requested a temporary restraining order. A Mississippi district court sided with the clinic and issued a permanent injunction against the law this past November, claiming it violated legal due process under the 14th Amendment, which specifically states:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The attorneys general, however, offer no actual scientific evidence for asserting pro-life laws such as those enacted in Mississippi and Ohio don't effectively reduce abortions.

The state immediately appealed the decision, which prompted the onslaught of out-of-state attorneys general filing a brief in the U.S. Court of Appeals for the Fifth Circuit.

In addition to Michigan, attorneys general from the following states have enjoined the legal challenge: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington and the District of Columbia.

According to the press release:

Make no mistake, this is the beginning of a concerted effort to overturn Roe v. Wade and to take states — including Michigan — back to the dark ages where women were forced to resort to back-alley abortions for fear of criminal prosecution. We cannot and will not sit idly by. We have an obligation to step up and speak out for the protection of Michigan women and all women.

In their amicus brief, the 21 attorneys general claim:

Amici States recognize and share Mississippi's interests in protecting the health of all women, including women of childbearing age. But reducing or eliminating access to safe and legal abortion leads to worse health outcomes for women. Amici States write to highlight some of the ways in which they have promoted women's health, including by expanding access to healthcare services and contraceptives, supporting maternal and infant health care programs, offering educational and counselling services, and taking concrete steps to reduce maternal mortality rates. Their experiences demonstrate that States can advance women's health while still protecting women's constitutionally protected rights. ... Safe, legal abortion is an important component of that care; indeed, overwhelming scientific evidence establishes that highly restrictive abortion laws (like the one at issue here) lead to worse health outcomes for women, while failing to lower abortion rates.

The attorneys general, however, offer no actual scientific evidence for asserting pro-life laws such as those enacted in Mississippi and Ohio don't effectively reduce abortions. In an essay titled "'Abortion Restrictions Don't Work': A Dubious Claim" at National Review Online, University of Alabama philosophy instructor Kyle Blanchette challenges the attorneys general's assertions that restricting abortions does little to reduce the number of procedures performed.

Blanchette bolsters his thesis by linking to studies published by the Population Research and Policy Review, Baylor University and the American Public Health Association. He writes, "If moderate pro-choicers really do believe that abortion should be 'rare,' then showing that abortion restrictions actually do lower abortion rates should move them in a more pro-life direction.

Claims that access to abortion is necessary for ensuring women's health also are speculative. According to the nonprofit research and philanthropic organization United Health Foundation (UHF) website, Mississippi's maternal mortality rate in 2018 was 22.6 deaths per 100,000 live births — a 15% decrease from 2016 figures. Factors listed by UHF attributing to lower maternal mortality include increased physical activity and decreasing rates of tobacco use.

The biggest challenge to maternal health is listed as a high prevalence of obesity in the state. The precipitous drop in maternal mortality occurred despite that the Guttmacher Institute reports no abortion providers existed in 99% of Mississippi counties since at least 2014. Such statistics further render suspect the attorneys general's claims that access to abortions are necessary to ensure the health of women.

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