The fate of Mississippi’s abortion trigger law, which will ban nearly all abortions in the state by July 7 if allowed to take effect, could be decided at a hearing in a Hinds County Chancery Court on Tuesday, July 5.
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 June 24, and Mississippi Attorney General Lynn Fitch took steps Monday to make the trigger law enforceable 10 days later.
But lawyers for Mississippi’s only abortion clinic, the Jackson Women’s Health Organization, are arguing that, even without Roe v. Wade, Mississippians have a right to abortion under the Mississippi Constitution. They cite a 1998 Mississippi Supreme Court decision, Pro-Choice Mississippi v. Fordice.
“Although the U.S. Supreme Court’s June 24 decision in Dobbs v. Jackson Women’s Health Organization overruled the Court’s decision in Roe v. Wade—taking away federal constitutional protections for abortion—rights under the Mississippi Constitution are independent of those under the U.S. Constitution. The decision in Pro-Choice Mississippi v. Fordice is binding precedent that prevents the State of Mississippi from outlawing abortion regardless of the current status of federal law,” the lawsuit says.
In Pro-Choice Mississippi v. Fordice, the Mississippi Supreme Court said that the state constitution does not recognize “an explicit right to an abortion,” but that “autonomous bodily integrited is protected under the right to privacy” and “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.
On the day the U.S. Supreme Court overturned Roe v. Wade, Mississippi House Speaker Philip Gunn told reporters that he opposes allowing exemptions for rape or incest even if it meant a 12-year-old girl would have to carry her father’s or uncle’s child to term.
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.
After the plaintiffs filed their lawsuit, all Hinds County Chancery Court judges in the 5th District recused themselves from the case. On Thursday, Mississippi Supreme Court Chief Justice Mike Randolph appointed Judge Debbra K. Halford of the 4th District to preside over the case.
The Mississippi Center For Justice announced today that Halford set the hearing for 10 a.m. on Tuesday, July 5—just two days before the trigger law is set to go into effect.