Monday wasn't a special day because the attorney general's office was in appellate court. It was special because the state's lawyers were on hand to defend a law that isn't even on Texas' books, arguing on behalf of a set of Mississippi abortion restrictions that are tougher than anything the Lone Star State has to offer.
The Fifth Circuit is actually looking at two Mississippi abortion laws. The first, and the one Texas is fighting on behalf of, bans most abortions after 15 weeks in Mississippi and all abortions after 16 weeks. The second bans abortion after a fetal heartbeat can be detected, a point that's typically about six weeks after conception.
Planned Parenthood says the law is politically motivated and has nothing to do with ensuring women's safety, as Mississippi has argued.
“Mississippi already ranks last nationwide when it comes to the health of our women and children. If Governor (Phil) Bryant truly cared about the health and well-being of Mississippi women and families, he would be working to expand access to health care — not taking it away,” Felicia Brown-Williams, Mississippi state director for Planned Parenthood Southeast Advocates, said after the 15-week ban was passed. “This law was written by politicians, not doctors. HB 1510 is just the latest in a series of attacks targeting women and access to safe, legal abortion.”
According to reporters in the courtroom, Texas attorneys argued that Supreme Court precedent, established in Roe vs. Wade, Planned Parenthood vs. Casey and, most recently, Whole Woman's Health vs. Hellerstedt, guaranteeing women's right to abortion up to fetal viability isn't absolute.
After the hearing, Paxton said that federal courts should consider a fetus' potential ability to feel pain when they evaluate newly passed abortion restrictions.
“There is ample evidence that unborn babies at this stage experience pain as they are killed in their mother’s womb and that later-term abortion procedures are riskier for women," Paxton said. "We hope that the Fifth Circuit understands the suffering that both the mother and unborn child experience without this reasonable regulation.”
When a fetus might experience pain is subject to debate. The most common medical reference for legislators seeking to ban abortion at 20 weeks is from University of Tennessee professor of pediatrics, anesthesiology and neurobiology Dr. Kanwaljeet Anand, who contends that at 20 weeks, fetuses have neural development capable of perceiving pain. Other research, including a report published by the U.K. Royal College of Obstetricians and Gynaecologists in 2010, suggests that while the fetus may begin developing the appropriate neural pathways at 20 weeks, they aren’t completed. Any medical procedure performed on a fetus before 24 weeks, the Royal College says, doesn’t require that it be anesthetized.
"We hope that the Fifth Circuit understands the suffering that both the mother and unborn child experience without this reasonable regulation.” — Ken Paxton
Both the Mississippi law and Paxton's argument build on the only piece of Texas' 2013 abortion law that's left. Texas' 20-week abortion ban and its continued legal survival offers anti-abortion state leaders and activists a wedge into Roe vs. Wade because it establishes a state interest in limiting fetal pain.
If and when states can set earlier bans and have them survive in the courts, states can combine them with bans on specific procedures — Texas has a law on the books banning dilation and evacuation, the most common, and safest second-trimester abortion procedure, that's awaiting court approval — to drastically curtail access to abortion.