ORDER GRANTING PRELIMINARY INJUNCTION

Carlton W. Reeves, United States District Judge.

Here we go again. 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.1

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.2 The State responded by passing an even more restrictive bill, S.B. 2116.

Plaintiffs now move to supplement their original complaint to challenge S.B. 2116 and to preliminarily enjoin the bill's enforcement, prior to it taking effect on July 1, 2019. On May 21, the Court held oral argument on both motions.

I. Supplemental Complaint

This suit has already been divided into two parts: Part I addressed the 15-week ban, and Part II, which is currently in discovery, involves challenges to five different abortion regulation schemes. Plaintiffs' proposed supplemental complaint would in effect add a Part III—a challenge to S.B. 2116 based on due process and equal protection claims.

Under Rule 15(d), "the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented."3

"[T]here is the obvious and reasonable requirement that the supplementation have `some relation' to what is sought to be supplemented."4 When deciding whether to allow supplementation, the court should consider the totality of the circumstances, such as: "(1) undue delay, (2) bad faith or dilatory motive by the movant, (3) repeated failure to cure deficiencies by previous amendments, (4) undue prejudice to the opposing party, or (5) futility of amendment."5

The State concedes that none of these factors "weigh against allowing supplementation[.]"6 Rather, the State argues that because the challenge to S.B. 2116 does not stem from the original complaint, plaintiffs are attempting to "shoehorn a separate and distinct constitutional challenge" into "their existing complaint[.]"7

There are several reasons to allow plaintiffs to supplement the complaint. First, as all parties acknowledge, none of the factors mentioned above (delay, bad faith, deficiencies, undue prejudice, or futility) counsel against supplementation.8

Second, the proposed supplemental claims are related to the original suit. The supplemental claims involve the same parties as the original suit. The supplemental claims pose the same legal question as the original suit: does the law ban abortion prior to viability? And the supplemental claims involve a substantial overlap of facts relevant to the original suit.9 Finally, the supplemental claims can be adjudicated simultaneously with the current suit because Part II still has a year left in discovery.

In a similar case challenging Alabama's abortion regulations, Judge Myron Thompson addressed a similar motion to supplement the complaint. He reasoned that "one of the primary goals of Rule 15(d) is to aid in the complete resolution of disputes between parties."10 Because plaintiffs filed the original complaint to "prevent permanent closure of the [abortion] clinic," and their proposed supplemental complaint added a challenge to a regulation that would have also resulted in closure, supplementation allowed for complete resolution in a single civil action.11

This Court is in a very similar position to Judge Thompson. The State passed a new abortion ban while its present abortion ban is in active litigation. Supplementation will allow for a complete resolution of the dispute between JWHO and the State. To use the State's words, it would not "make sense" to force the plaintiffs to challenge this statute in a separate lawsuit.

The motion to supplement is granted. The supplemental claims against S.B. 2116 will proceed as Part III of this case. Part III will move forward on the same timeline as Part II.

II. Preliminary Injunction

Plaintiffs have also moved for a preliminary injunction of S.B. 2116. They must clearly demonstrate:

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.13 If a fetus is not viable at 15 weeks lmp, it is not viable at 6 weeks lmp. The State conceded this point.14 The State also conceded at oral argument that this Court must follow Supreme Court precedent.15 Under Supreme Court precedent, plaintiffs are substantially likely to succeed on the merits of this claim.16,17

S.B. 2116 threatens immediate harm to women's rights, especially considering most women do not seek abortion services until after 6 weeks.18 Allowing the law to take effect would force the clinic to stop providing most abortion care.19 By banning abortions after the detection of a fetal heartbeat, S.B. 2116 prevents a woman's free choice, which is central to personal dignity and autonomy.20 This injury out-weighs any interest the State might have in banning abortions after the detection of a fetal heartbeat.21 Any delay in the enforcement of S.B. 2116 will serve the public interest by protecting this established right and the rule of law.22

Finally, the Legislature's passage of S.B. 2116 during the pendency of this litigation compels the Court to make the following observation. If there is no medical evidence to prove that a fetus is viable at 15 weeks lmp or at 6 weeks lmp, then a fetus is not viable between 0 and 5 weeks lmp.

III. Conclusion

The plaintiffs' request for a preliminary injunction is GRANTED. The defendants; their officers, agents, employees, and attorneys; and all other persons who are in active concert or participation with them; shall not enforce S.B. 2116.23

SO ORDERED, this the 24th day of May, 2019.