Well, folks, this is why the judiciary is so important: In a pithy decision which began with a line seemingly designed to bait the media, an Obama-era federal judge blocked Mississippi’s fetal heartbeat law.
The law, passed in February, would have banned most abortions after six weeks.
“Except when a medical emergency exists that prevents compliance with this section, no person shall perform an abortion on a pregnant woman before determining if the unborn human individual that the pregnant woman is carrying has a detectable fetal heartbeat,” the Mississippi bill read in part.
“Any person who performs an abortion on a pregnant woman based on the exception in this section shall note in the pregnant woman’s medical records that a medical emergency necessitating the abortion existed.”
On Friday, U.S. District Judge Carlton Reeves blocked its implementation and found that the plaintiff in the case, Mississippi’s sole abortion clinic, is “substantially likely to succeed on the merits of this claim.”
But it was the first line of the judge’s decision that seemed to catch everyone’s attention.
“Here we go again,” Judge Reeves wrote.
“Mississippi has passed another law banning abortions prior to viability. The latest iteration, Senate Bill 2116, bans abortions in Mississippi after a fetal heartbeat is detected, which is as early as 6 weeks lmp. [After last menstrual period.] The parties have been here before. Last spring, plaintiffs successfully challenged Mississippi’s ban on abortion after 15 weeks lmp. The Court ruled that the law was unconstitutional and permanently enjoined its enforcement. The State responded by passing an even more restrictive bill, S.B. 2116.”
“This Court previously found the 15-week ban to be an unconstitutional violation of substantive due process because the Supreme Court has repeatedly held that women have the right to choose an abortion prior to viability, and a fetus is not viable at 15 weeks lmp,” Reeves ruling continued.
“If a fetus is not viable at 15 weeks lmp, it is not viable at 6 weeks lmp. The State conceded this point. The State also conceded at oral argument that this Court must follow Supreme Court precedent. Under Supreme Court precedent, plaintiffs are substantially likely to succeed on the merits of this claim.”
Now, one could legitimately question whether or not Mississippi expected the bill to survive this challenge. After all, the end goal of most of this legislation is for it to end up before the Supreme Court in order to clarify the limits of — and possibly overturn — Roe v. Wade and other abortion-related decisions.
However, the fact that this ended up before Reeves is yet another reminder of why judicial appointments matter.
Reeves is one of the more high-profile judges at the district level. As the Jackson, Mississippi, Clarion-Ledger noted, he blocked Mississippi’s religious objections law back in 2016, a ruling that was reversed by the 5th Circuit U.S. Court of Appeals. He’s also been openly critical of President Donald Trump’s judicial appointments, making parallels between conservative judicial philosophy and the KKK and segregation.
“When politicians attack courts as ‘dangerous,’ ‘political,’ and guilty of ‘egregious overreach,’ you can hear the Klan’s lawyers, assailing officers of the court across the South. When leaders chastise people for merely ‘using the courts,’ you can hear the Citizens Council, hammering up the names of black petitioners in Yazoo City,” Reeves said in an April speech at the University of Virginia School of Law.
“Dangerous,” “political,” “egregious overreach” and “using the courts” were all quotes from Trump, although they could have easily come from any Republican who feels the courts have been guilty of judicial activism. Clearly, we’re dealing with a man possessed of both impartiality and subtlety here.
Again, this ruling is hardly the end. Mississippi Gov. Phil Bryant, a Republican, said in a statement that he would “encourage the Attorney General to seek immediate review of the preliminary injunction.”
“As Governor I’ve pledged to do all I can to protect life,” he wrote. “Time and time again the Legislature and I have done just that.”
#BREAKING Statement from @PhilBryantMS on U.S. District Judge Carlton Reeves granting a preliminary injunction against Mississippi’s 6-week abortion ban he signed into law. @WJTV pic.twitter.com/1X5A9bDpqw
— WJTV Gerald Harris (@GeraldHarrisTV) May 24, 2019
However, the ruling underscores the importance of being able to send judicial appointments to the Senate to be confirmed. For eight years, Barack Obama was able to do that. When he couldn’t get enough appointments through the Senate, then-Senate Majority Leader Harry Reid invoked the nuclear option and ended the filibuster on judicial nominations. (Incidentally: Thanks, Harry.)
Reeves is a man who says that any politician who complains judges are “political” is resorting to the tactics of segregationists and the Klan without realizing the sad irony or the shamelessness involved. When it comes to headline-grabbing, here we go again, indeed. That’s not what the judiciary is for, however — and I would much prefer to have a president who recognizes that.
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