As the number of confirmed COVID-19 cases in Mississippi neared 2,000 last Tuesday, the state’s governor, Tate Reeves, was preoccupied with another matter: how to use the unfolding novel coronavirus crisis as a way to temporarily close down the state’s only abortion clinic.
The answer arrived late that afternoon, when the 5th U.S. Circuit Court of Appeals in New Orleans allowed Texas Gov. Greg Abbott’s own March 22 executive order shutting down the Lone Star State’s abortion clinics to take effect. Earlier, a federal court had granted a stay after abortion-rights organizations filed suit, temporarily blocking the order from taking effect.
Reeves got hold of the 47-page ruling on April 7, the same evening the ruling came down. Abbott’s order forced health-care professionals to postpone “all surgeries and procedures that are not immediately necessary,” including abortion clinics. The Texas order passed constitutional muster, the majority on a three-judge panel ruled, because preserving personal protective equipment, or PPE, aligned with “the state’s critical interest in protecting the public health” during a pandemic.
Abbott’s order, the panel said, did not appear to specifically target women’s right to have an abortion; it targeted all “elective surgeries,” the judges wrote.
But the Mississippi governor would quickly make it clear on conservative talk radio that he saw the ruling as an opening to shut down the Jackson Women’s Health Organization in the capital city, which he had spent the past eight years trying to do as the state’s lieutenant governor and Senate president. Federal courts, including the 5th Circuit, have repeatedly blocked those efforts, though, including last year when the federal appeals court blocked a six-week abortion ban that Reeves championed in 2019.
This Texas ruling, Reeves argued, could serve as a “guideline” to finally stop abortions in the state—at least temporarily.
Live from Tupelo, Reeves Explains Ban Strategy
“As soon as we got it, our lawyers have been reviewing it, looking at it, because we want to make sure we have a similar order that meets the guidelines as set forth by the court,” the Magnolia State’s governor told American Family Radio host Tim Wildmon about the 5th Circuit’s order in an interview the next day, on April 8.
“Because one of the things we have found over the years is that Mississippi’s laws would ensure that we are the safest place in America for an unborn child. That’s something we want to continue, but now we have guidance.”
“I would just copy and paste it,” suggested Wildmon, who is also the president of the Tupelo, Miss.-based American Family Association, whose organization the Southern Poverty Law Center designates as a hate group for its crusade against gay rights and on other “traditional moral values” fronts.
The host’s suggestion elicited a chuckle from Reeves, who said he was already thinking along those lines, and that his order could come within a day.
“I have been talking to our lawyers. We have been cutting and pasting Texas’ order, with the exception of that fact that we have slightly different state laws, so our order has to comply with our state laws when compared to Texas’, but yes, we have every intention of having an order that is in line, that meets the guidelines as set forth in the 47-page order yesterday by the 5th Circuit.”
The next day, on Friday afternoon, Reeves followed through, announcing Executive Order No. 1470 with a statement titled, “Governor Reeves Issues Executive Orders to Protect Healthcare Professionals.”
“We are so blessed to have our nation’s best and brightest in our state’s health-care system, and I thank these heroes for caring for Mississippians as we work to slow the spread of COVID-19,” Reeves said in the April 9 statement. “While they’re fighting to protect us, we’re going to do everything in our power to protect them.”
Parts of Reeves’ order are identical to Abbott’s, including the portion that claims it is necessary to preserve medical protective equipment that would “be depleted by surgeries and procedures that are not medically necessary to correct a serious medical condition or to preserve the life of a patient, contrary to recommendations from the President’s Coronavirus Task Force, the CDC, the U.S. Surgeon General, and the Centers for Medicare and Medicaid Services.”
A further depletion of PPE, both orders state, “would hinder efforts to cope with the COVID-19 disaster.”
Wildmon: ‘About the Abortion Clinic in Jackson’
Neither Reeves’ statement nor Order No. 1470 itself mentions abortion, though the announcement notes that “Governor Reeves issued this order to ensure that PPE and medical supplies would not be depleted by medically unnecessary surgeries, as well as to protect the health and safety of health care professionals needed to help in COVID-19 response.”
During his interview with Wildmon the day before, though, Reeves never mentioned the need to protect health-care workers or to preserve PPE. “Basically, our discussion here is about the abortion clinic in Jackson, the one we have in the state,” Wildmon said as he opened the interview, noting that “Mississippi is a very pro-life state” and “Governor Reeves is a very pro-life governor.”
Throughout, Reeves only identified abortion as the impetus for issuing his own version of the Texas order.
During a live-streamed press conference shortly after issuing the order the next afternoon, though, Reeves avoided mentioning abortion. “We have to make sure we have adequate supplies of PPE so that health-care workers can safely tend to those patients that are in our hospitals,” the Republican governor told members of the press.
When one reporter asked if the order would close the abortion clinic, Reeves suggested it would without directly answering the question.
“It shuts down all elective surgeries,” he replied simply.
But the order could have had the effect of ending most abortions in the state for two weeks, except those necessary to “preserve the life of a patient.”
Mississippi Women as ‘Political Pawns’
In a statement Friday evening, Staci Fox, the president and CEO of Planned Parenthood Southeast, sharply criticized Reeves’ order.
“Women in Mississippi should not be used as political pawns at any time and especially during this pandemic. Safe and legal abortion care has always been essential, and must remain so during this public health crisis,” Fox said. “We stand with Jackson Women’s Health Organization as they are delivering this essential care during a public health crisis.”
The next day, on Saturday, U.S. District Court Judge Carlton W. Reeves, the federal judge in Jackson who has been the first to hear each of several lawsuits against the State of Mississippi over laws targeting abortion rights in recent years, preemptively sent a letter to lawyers representing the State and JWHO, the abortion clinic.
“At this moment, it seems reasonable to expect plaintiffs to challenge the abortion restrictions in yesterday’s Executive Order, and that challenge will be brought within this case. … Before we go down that expensive and time-consuming path, I wanted to write and see if there was another way forward,” Judge Reeves wrote. In the letter, he pointed to a court battle in Alabama over its own attempts to limit abortion access during the pandemic.
Each time Judge Reeves, a Barack Obama appointee, has heard an abortion case, he has ruled against the State, striking down a ban on abortions after 15 weeks in 2018 and blocking the State’s so-called “heartbeat law,” which bans abortions after about six weeks’ gestation, last May.
The judge, eager to avoid another abortion case, wrote in his letter that Mississippi State Health Officer Dr. Thomas Dobbs could “help us all avoid all the litigation and upheaval our sister state has experienced” by clarifying whether or not the order will force JWHO to cease operations.
In a footnote, Reeves offered a more personal clarification: “For any out of state readers, no, Governor Reeves and I are not related. Mississippi is small, but not that small.”
Gov. Reeves previously signaled his intent to ban abortions amidst the coronavirus crisis during a late March press conference alongside Dobbs. When a reporter asked Dobbs about it, though, he said he was “not familiar with” the issue, and would want to “review the situation a bit more.” Dobbs has not clarified since. When Gov. Reeves issued the order on April 9, though, he said he did so in coordination with Dobbs and the Mississippi State Department of Health.
At the time Gov. Reeves sent his letter on Saturday, no outlets had reported on Gov. Reeves’ comments to American Family Radio on April 7. Even if Reeves ultimately struck down the governor’s order, the case would go to the 5th Circuit, which would likely allow it to take effect because of its similarity to the Texas one. The 5th Circuit hears cases originating in Louisiana, Mississippi and Texas.
5th Circuit: ‘Under the Pressure of Great Dangers’
In its ruling, the 5th Circuit judges cited a 1905 U.S. Supreme Court case, Jacobson v. Commonwealth. In that case, the nation’s highest court considered a man’s claim that a mandatory vaccination law enacted amid a smallpox epidemic in Cambridge, Mass., violated his 14th Amendment right “to care for his own body and health in such way as to him seems best.” The court ruled in favor of the State in that case.
“Under the pressure of great dangers,” the government can restrict constitutional rights “as the safety of the general public may demand,” the U.S. Supreme Court ruled in 1905.
In its April 7 ruling, the 5th Circuit cited Jacobson as precedent.
“That settled rule allows the state to restrict, for example, one’s right to peaceably assemble, to publicly worship, to travel, and even to leave one’s home. The right to abortion is no exception,” the 5th Circuit’s ruling reads.
The 5th Circuit also cited another Supreme Court ruling, Prince v. Massachusetts in 1944, which found that the “right to practice religion freely does not include liberty to expose the community … to communicable diseases.”
Though Mississippi’s governor appears to accept the idea that the Jacobson ruling allows states to restrict abortion, which the Supreme Court ruled is a “fundamental right” in 1973, Reeves has resisted the idea that it allows government to restrict other rights.
In March, he issued an executive order that defines houses of worship and gun shops as “essential services” that local governments cannot force to close amid the pandemic. When Greenville Mayor Errick Simmons ordered churches in his town to stop holding in-person or drive-in services earlier this month, Reeves was incensed, writing on Facebook that the move was “outrageous” and risked a “revolt.” The governor even suggested that Greenville had “trampled on the Constitution.”
‘Unclear How PPE Is Consumed in Medication Abortions’
The 5th Circuit’s April 7 ruling notes that Abbott’s order, GA-09, was different from the Mississippi restrictions it blocked in 2018 and 2019, which the justices refer to as “Jackson I” and “Jackson II” in the ruling. Those laws totally banned abortions after a certain gestational period with exceptions only for extreme cases.
“GA-09 only delays certain non-essential abortions. GA-09 thus differs from the regulations in Jackson II and III in three key respects. First, GA-09 expires on April 21, 2020, three weeks after its effective date. Second, GA-09 includes an emergency exception for the mother’s life and death, based on the determination of the administering physician. Third, GA-09 contains a separate exception for ‘any procedure’ that, if performed under normal clinical standards, ‘would not deplete the hospital capacity or the personal protective equipment needed to cope with the COVID-19 disaster.’”
Reeves’ April 9 executive order, similarly, makes an exception for “any procedure that, if performed in accordance with the commonly accepted standard of clinical practice, would not have the potential to deplete the hospital capacity, medical equipment or PPE needed to cope with the COVID-19 disaster.”
In Mississippi, most abortions are “medication abortions” that take place at 16 weeks or prior, and only involve taking a pill, not a surgical procedure. The 5th Circuit wrote that its review found that “surgical abortions consume PPE,” but “the record is unclear how PPE is consumed in medication abortions.”
In proceedings, opponents of Abbott’s order said PPE is not used in “providing the pills,” the justices noted, but the State pointed out that Texas law “requires a physical examination, ultrasound and follow-up visits,” all of which consume PPE, including gloves and masks. Like Texas, Mississippi law requires women to submit to an ultrasound before having an abortion.
Judge Dennis: ‘I Respectfully But Emphatically Dissent’
The judges in the majority for the 5th Circuit’s April 8 ruling were Judge Stuart Kyle Duncan, whom Republican President Donald Trump appointed, and Judge Jennifer Walker Elrod, whom former Republican President George W. Bush appointed.
The only Democratic-appointed judge on the 5th Circuit’s three-judge panel, James L. Dennis, a Bill Clinton appointee, wrote a dissent. Because Texas (like Mississippi), limits how far into a pregnancy a woman can have an abortion, Dennis wrote, the law risks effectively prohibiting some women from exercising their right to an abortion.
And despite the majority’s satisfaction that the governor did not single out abortion, he wrote, Texas Attorney General Ken Paxton issued a new release the day after Abbott’s order specifying that the prohibitions include “any type of abortion that is not medically necessary to preserve the life of the mother.”
Paxton reiterated that position to American Family Radio Host Wildmon on April 8, minutes before Gov. Reeves joined the program.
Judge Dennis also took issue with the majority’s use of Jacobson v. Massachusetts to justify its position. That ruling, Dennis pointed out, required that any actions curtailing rights be “justified by the necessities of the case” and not violate rights “under the guise of exerting a police power.”
Though PPE, such as gloves, “may be used at pre- and post-procedure appointments,” Dennis wrote, that argument “mistakenly assumes that a patient unable to obtain an abortion will not otherwise need medical care that requires the consumption of PPE,” since prenatal care and childbirth consume “exponentially more PPE than an abortion.”
“Denying pregnant patients access to abortion now may simply change the purpose for which PPE is used, without any surplus that is able to be reallocated to health care workers,” Dennis wrote.
Abbott’s order, the dissenting judge wrote, does not seem related to its stated goal of preserving PPE.
“In a time where panic and fear already consume our daily lives, the majority’s opinion inflicts further panic and fear on women in Texas by depriving them, without justification, of their constitutional rights, exposing them to the risks of continuing an unwanted pregnancy, as well as the risks of traveling to other states in search of time-sensitive medical care. I respectfully but emphatically dissent,” Dennis concludes.
Fox: ‘We Must Continue to Trust Women and Doctors’
On Saturday, the Center for Reproductive Rights, a Washington, D.C.-based legal group, filed an appeal to the U.S. Supreme Court on the Texas plaintiffs’ behalf, asking the court reinstate a stay on Abbott’s order, warning that “virtually all Texas residents with unplanned pregnancies are unable to access early abortion care through medication abortion and must instead wait until they reach a more advanced stage of pregnancy.” That, the plaintiffs argue, will only require “more health care” in the long run and incentivize out-of-state travel.” Hundreds of women have already been turned away, the appeal application claims.
Even before the Texas order, The American College of Obstetricians and Gynecologists released a joint statement on March 18, calling abortion an “essential component of comprehensive health care” that is “time-sensitive.”
After Gov. Reeves issued his order on April 9, Fox, the Planned Parenthood Southeast director, pointed to that statement as she urged Mississippi leaders not to block access to abortion rights.
“While we are all concerned about this global pandemic, we must continue to trust women and their doctors informed by public health experts to make these health care decisions, not politicians,” Fox said on Friday.
Reeves’ order, unless extended or blocked in court, is set to expire on April 27 at 8 a.m.
Update: After the Mississippi Free Press first published this story, the U.S. 5th Circuit Court of Appeals made an additional ruling, allowing medication abortions to continue in Texas. Since, Gov. Reeves has not publicly pushed the issue in Mississippi and the Jackson clinic has continued providing abortions.
The Mississippi Free Press has an interactive map showing diagnosed coronavirus cases across the state and one showing the number of ICU beds in counties across the state.