The Jackson Women’s Health Organization, Mississippi’s only abortion clinic, filed a lawsuit today asking the Hinds County Chancery Court to block the State from enforcing a near-total abortion ban in the form of a trigger law. The plaintiffs argue that “the Mississippi Constitution protects a right to abortion.”
In 2007, the Mississippi Legislature passed the law and set it to become effective only if the U.S. Supreme Court overturned Roe v. Wade. The U.S. Supreme Court reversed that 1973 precedent on Friday and Mississippi Attorney General Lynn Fitch took steps today to bring the trigger law into effect on July 7.
But lawyers for the clinic are arguing that, even without Roe v. Wade, Mississippians have a right to abortion under the Mississippi Constitution, citing a 1998 Mississippi Supreme Court decision, Pro-Choice Mississippi v. Fordice.
‘Time To Turn To The Mississippi Constitution’
“In Fordice, the Mississippi Supreme Court held that ‘abortion is protected within the penumbras of the right to privacy’ under the Mississippi Constitution. Id. at 666. That precedent prohibits the State of Mississippi from banning abortions or imposing an undue burden on a woman’s ability to obtain an abortion,” the lawsuit says. “Given that the decision was issued by the Mississippi Supreme Court based on the Mississippi Constitution, it is not dependent upon the U.S. Supreme Court’s interpretation of the U.S. Constitution. Thus, the precedent established in Fordice remains good law.”
Rob McDuff, director of the George Riley Impact Litigation Initiative for the Mississippi Center for Justice, told the Mississippi Free Press in an interview that the Mississippi Supreme Court case lay dormant until the repeal of Roe v. Wade.
“Roe v. Wade always provided federal protection for the right to abortion. And so there was no need to call upon the Mississippi constitution until now.”
With Roe v. Wade repealed, and decades of legal precedent overturned, McDuff, the Jackson Women’s Health Organization and other defenders of abortion rights in Mississippi are shifting to the precedent of Mississippi’s own supreme court.
“Since the (Supreme Court of the United States) has destroyed the federal constitutional right to an abortion, it’s time to turn to the Mississippi constitution,” McDuff explained.
More specifically, Pro-Choice Mississippi v. Fordice acknowledges that “while we do not interpret our Constitution as recognizing an explicit right to an abortion, we believe that autonomous bodily integrity is protected under the right to privacy as stated in In re Brown. Protected within the right of autonomous bodily integrity is an implicit right to have an abortion.”
If the trigger law takes effect, it will “prohibit abortions in the state of Mississippi” at any stage “except in cases where necessary for the preservation of the mother’s life or where the pregnancy was caused by rape.” In order to obtain an abortion under the law, a rape victim would have to first report the assault to law enforcement.
Lawyers with the Mississippi Center For Justice, The Center For Reproductive Rights and Paul, Weiss law firm are representing the clinic in the case. They argue that a currently blocked 2019 law banning abortion after the sixth week of pregnancy also ought to remain ineffective.
“Because the Trigger Ban would have the effect of eliminating nearly all abortion access in Mississippi, and the 6-Week Ban would prohibit most abortions in Mississippi, the Bans violate the state constitutional right to abortion as protected under the Mississippi Constitution,” the lawsuit says.
‘Devastating Harm and Utter Chaos’
The Mississippi abortion clinic was at the center of Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court case that led to the downfall of Roe v. Wade. In 2018, a national evangelical legal group called Alliance Defending Freedom partnered with Mississippi lawmakers to pass a 15-week abortion ban in hopes of getting a case to the U.S. Supreme Court to challenge Roe v. Wade. While the case worked its way through lower courts, former President Donald Trump made appointments to the U.S. Supreme Court that tilted its balance toward an anti-Roe majority.
Last year, Mississippi Attorney General Lynn Fitch asked the justices to uphold the ban and overturn Roe v. Wade; they did so on Friday, June 24, 2022.
“Across the country, we are already seeing the devastating harm and utter chaos the U.S. Supreme Court has caused people seeking abortion care, providers, and practical support organizations,” Center For Reproductive Rights Staff Attorney Hillary Schneller said in today’s statement. “Abortion remains legal in Mississippi. We will continue to work to ensure that every Mississippian can make their own decisions about their body, their lives, their relationships and their families.”
In 2019, reporter Ashton Pittman asked Schneller if she worried that the U.S. Supreme Court could overturn Roe v. Wade in a Mississippi abortion challenge, particularly after former President Trump appointed Justice Brett Kavanaugh to replace former Justice Anthony Kennedy.
“I think the court has stood fast by the right to abortion for nearly 50 years over that time, the court has been of different compositions, and while state politicians may be hoping for a different result here, these bans have never stood a chance in court,” Schneller said on May 21, 2019. “And there are many ways which the court could undercut the right to abortion which I think we’re being distracted from focusing on by the fact that states are passing these bans now.”
Abortion-rights advocates at the time had thought the court was more likely to chip away at Roe v. Wade with more targeted restrictions without reversing it completely. After that interview, though, liberal Justice Ruth Bader Ginsberg died, and Trump replaced her with Justice Amy Coney Barrett, who had already spoken out against abortion rights in the past and had ties to Alliance Defending Freedom. Republicans quickly confirmed Barrett days before the 2020 election.
Vangela M. Wade, the president and CEO of the Mississippi Center For Justice, said in a statement today that “the government should not be deciding matters of childbirth for the women and families of Mississippi.”
“Mississippi lawmakers have proven the health and well-being of its poor women and families is not a priority,” she said. “They refuse to expand postpartum maternal care, increase the minimum wage or expand Medicaid to provide health care for our working poor. The hypocrisy would be comical if it wasn’t so devastatingly harmful.”
Alecia Korberg, a Paul, Weiss partner and co-counsel in the case, said in the statement that the Mississippi Supreme Court has “long found an independent right to privacy, separate and apart from the U.S. Constitution that encompasses and protects the right to bodily autonomy, including the decision whether and when to bear children.”
Plaintiffs Seek Restraining Order
McDuff told the Mississippi Free Press that the trigger ban lawsuit is proceeding through the Hinds County Chancery Court, assigned to Judge Denise Owens.
“We will be asking her to impose a temporary restraining order,” he added, which would extend the clock on access to abortion in Mississippi.
The case, and any order that follows from it, would apply to Mississippi’s six-week fetal heartbeat ban and its trigger law, protecting the right to abortion in Mississippi up to 15 weeks. McDuff and the MCJ are not challenging the ban on abortions after 15 weeks at the heart of the Dobbs v. Jackson Women’s Health case.
McDuff acknowledged in an interview that the Jackson Women’s Health Clinic did not perform abortions after the first trimester in the first place.
“The clinic only performed abortions up to 16 weeks previously. In sort of recognition of the law, the clinic has decided not to not to offer abortions past 15 weeks,” he said.