United States District Court, S.D. Mississippi.
JACKSON WOMEN'S HEALTH ORGANIZATION, On Behalf of Itself and its Patients, et al. Plaintiff,
MARY CURRIER, State Health Officer, Mississippi Department of Health, et al. Defendants. v.
Carlton W. Reeves, District Judge
ORDER ON DISCOVERY
Carlton W. Reeves United States District Judge
lawsuit challenges many of Mississippi's abortion laws.
Last month, the Court split the suit into two
phases. The first deals with the challenge to H.B.
1510, Mississippi's 15-week abortion ban, while the
second will deal with all other challenges.
have moved to limit discovery (the process of uncovering
evidence) in the lawsuit's first phase. Plaintiffs say
that the litigants should only seek evidence about whether
viability occurs before or after 15 weeks. Viability,
according to the Supreme Court, is the time when “there
is a reasonable likelihood of the fetus' sustained
survival outside the womb, with or without artificial
Fifth Circuit, “the scope of discovery . . . is limited
only by relevance and burdensomeness[.]” The Federal Rules
of Evidence say that evidence is “relevant” if it
alters the likelihood a fact is true, and that fact is
“of consequence in determining the
action.”The question, then, is what evidence is of
consequence in deciding whether H.B. 1510 is lawful.
answer lies within the Constitution, which gives every woman
a constitutional right to “personal privacy” over
her body. The Supreme Court says that right protects
each woman's choice “to have an abortion before
viability.” “Before viability, ” a
government cannot “support a prohibition of abortion or
the imposition of a substantial obstacle to the woman's
effective right to elect the procedure.” “[A]fter
fetal viability, ” however, the government has the
“power to restrict abortions.” As the Fifth
Circuit has said, the “basic right to choose an
abortion” that this viability framework protects is
“settled constitutional law.”
1510 is effectively a ban on all elective abortions after 15
weeks. Given the Supreme Court's viability
framework, that ban's lawfulness hinges on a single
question: whether the 15-week mark is before or after
viability. As the Eighth Circuit has said, when
“viability presents the central issue in [a] case,
” an “order limiting discovery to the issue of
viability” is permissible. Evidence about any other
issue - like whether Mississippi has any interests that could
outweigh a woman's right to control her body and destiny
- is irrelevant.
Court will conclude with the obvious: Defendants' request
for expanded discovery is not about defending H.B. 1510
within the viability framework. The evidence Defendants seek,
about things like pre-viability “fetal pain,
” aims to persuade courts to reject the
framework itself. If the Supreme Court feels open to such
persuasion, it will indicate as much. To date, it has not
done so, and has instead spent decades affirming the
viability framework. This Court must remain within that
framework, and limit discovery accordingly.
motion to limit discovery is GRANTED. Their proposed
discovery schedule, as it applies to this lawsuit's first
phase, is ADOPTED.
 Order Separating Claims &
Extending TRO, Docket No. 25.
Motion to Adopt Plaintiffs'
Proposed Schedule and Limit Discovery, Docket No. 16;
see also Reply in Support of Motion to Adopt
Plaintiffs' Proposed Schedule and ...