Case: 19-60455 Document: 00515291864 Page: 1 Date Filed: 01/30/2020

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GENERAL



 

 

   



CIVIL LITIGATION DIVISION

January 30, 2020

Lyle W. Cayce, Clerk

Unites States Court of Appeals
for the Fifth Circuit

F. Edward Herbert Building
600 S. Maestri Place

New Orleans, LA 70130-3408

RE: Jackson Women?s Health Org. v. Dobbs, No. 19-60455
Dear Mr. Cayce:

Pursuant to Fed. R. App. P. 28(j), Defendants-Appellants write to address
this Court?s opinion in Jackson Women Health Org. v. Dobbs, No. 18-60868,
reported at 945 F.3d 265 (5th Cir. Dec. 13, 2019) issued after
briefing closed in this appeal. In JWHO I, a panel ofthis Court affirmed the
District Court?s order enjoining the enforcement of 2018 Miss. H.B. 1510, the
15-week abortion law. This Court denied Defendants-Appellants? petition for
en banc rehearing on January 17, 2020.

JWHO I held that H.B. 1510 is categorically unconstitutional because it
bars abortions after 15-weeks, before the point of fetal viability, and thus would
?ban? some pre-viability abortions. JWHO I further held the District Court did
not err in refusing to apply the undue burden test, or in precluding development
of an evidentiary record on any issue other than the point of fetal viability. 945
F.3d at 272-74.

Defendants-Appellants acknowledge that a panel ofthis Court cannot
overturn another panel?s prior decision absent an intervening change in
controlling law. Jacobs v. Nat?l Drug Intelligence Ctr, 548 F.3d 375, 378 (5th
Cir. 2008). The state law challenged in this appeal, SB. 2116, bars abortions
once a fetal heartbeat has been detected, which may occur as early as siX weeks,

WALTER SILLERS BUILDING - POST OFFICE BOX 220 JACKSON, MISSISSIPPI 39205-0220
TELEPHONE (601) 359-3680

Case: 19-60455 Document: 00515291864 Page: 2 Date Filed: 01/30/2020

  

efore the point of fetal viability.

Defendants-Appellants concede that application ofthe JWHO I panel?s
ion is presently binding with respect to the District Court?s preliminary
ction prohibiting S.B. 2116?s enforcement. However, Defendants-
llants intend to seek certiorari review ofthe JWHO 1 panel decision from
upreme Court. Defendants-Appellants contend that their good faith
arguments raised here and in JWHO 1 demonstrate application of the prior
panel?s opinion to SE. 2116 would only propagate the errors of JWHO I, and
reserve those arguments, as well as all others presented in this appeal, as may
be necessary for preservation purposes upon seeking further appellate review.

Sincerely,

S/Paul E. Barnes

Paul E. Barnes

Wilson D. Minor

Special Assistant Attorneys General
STATE OF MISSISSIPPI

OFFICE OF THE ATTORNEY GENERAL
Post Office Box 220

Jackson, MS 39205

Telephone: (601) 359-4072

Counsel for Defendants-Appellants