Wednesday will be the last day the Jackson Women’s Health Organization can provide abortions after a state court declined to block a near-total abortion ban from going into effect on Thursday, July 7.
In court Tuesday morning, attorneys for the clinic asked the judge, Special Chancellor Debbra K. Halford, to block the state’s 2007 trigger law from taking effect Thursday, July 7. When it does, the ban 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.”
Lawmakers set the law 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 in Dobbs v. Jackson Women’s Health Organization, and Mississippi Attorney General Lynn Fitch took steps on June 27 to make the trigger law enforceable 10 days afterward.
While asking the judge to block the law, the clinic’s attorneys cited a 1998 Mississippi Supreme Court ruling in Pro-Choice v. Fordice, which found residents have a “right to have an abortion” as part of the “right to privacy.” Mississippi Solicitor General Scott Stewart, however, told the court that the 24-year-old ruling relied on now-defunct Supreme Court precedents, Roe v. Wade and Planned Parenthood v. Casey.
Halford: ‘Real Harm’ Would Be To State
In her 8-page opinion Tuesday afternoon, Halford agreed with Stewart, saying that the Mississippi Supreme Court will likely reverse the Fordice ruling on appeal after the U.S. Supreme Court’s momentous ruling in the Dobbs case found “there is no U.S. Constitutionally protected right to an abortion.”
“Since Roe and Casey are no longer the law of the land, reliance upon Fordice will almost certainly not be well-founded when pursuing this case in the (Mississippi) Supreme Court,” she wrote, saying that “there seems to have been inadequate attempts by the Fordice Court to define alternate bases for finding the existence of state constitutional protection to abortion.”
In the Fordice decision, though, the Mississippi Supreme Court cited its own 1985 opinion in the case In re Brown, which found a “right to privacy” and “autonomous bodily integrity.” The court said in the Fordice ruling that “protected within the right of autonomous bodily integrity is an implicit right to have an abortion.”
Halford rejected the clinic’s arguments that failure to block the law would cause “irreparable harm” to its workers and their patients.
“Although many of the harms alleged by Plaintiffs boil down to economic harms to the providers by having to close their clinics and to their patients for the costs of delivery and caring for unwanted children, the Court acknowledges that the psychological trauma suffered by the patients and the perceived loss of life opportunities they will face in a post-Roe world is significant, and irreparable from those patients’ perspectives,” the judge wrote.
“The loss of licensure and potential imprisonment arguments urged by Plaintiffs are not persuasive inasmuch as those consequences can be avoided by compliance with the statutes as enforced.”
Halford found that any decision to temporarily block the law “would clearly harm the state and its citizens” by “denying the public interest in enforcement of its laws.” She cited the June 24 Dobbs ruling’s finding that states have “‘legitimate interests’ in restricting abortion,” including “respect for and preservation of prenatal life at all stages of development” and “the elimination of particularly gruesome or barbaric medical procedures.”
“The laws here advance those interests, and enjoining the laws would undermine those interests,” she wrote. “When considering this, clearly the real harm to the State of Mississippi and its citizens, current and future, flowing from the issuance of an injunction is outweighed by any potential threatened harm to Plaintiffs, if the injunction is not issued.”
Abortion Clinic Attorneys ‘Reviewing Options’
Rob McDuff, an attorney with the Mississippi Center for Justice, is representing the clinic and argued for the injunction Tuesday morning. He reacted to Halford’s decision in a short statement to the Mississippi Free Press.
“We are disappointed in the Court’s failure to uphold the Mississippi Constitutional rights at stake in this case,” he said. “We will be reviewing our options.”
Once the trigger ban takes effect Thursday, state law will provide no exceptions for incest or severe fetal deformity, and rape exceptions will only be accepted if a victim reported their rape to law enforcement. If federal courts allow a 2019 law banning abortions before six weeks to go into effect, though, there would be no rape exceptions available after the sixth week of pregnancy, either.
After the plaintiffs filed their lawsuit, all Hinds County Chancery Court judges in the 5th District recused themselves from the case. Last week, Mississippi Supreme Court Chief Justice Mike Randolph appointed Judge Debbra K. Halford of the 4th District to preside over the case. Former Republican Gov. Haley Barbour appointed her to the 4th District in 2005.
At the beginning of the hearing in the trigger law case Tuesday morning, Rev. Calvin Cosnahan, a United Methodist Church pastor, led a prayer as a “special chaplain” at Halford’s request.
“Lord, we pray for the presence of your holy spirt in this courtroom today. … We seek your truth, not our own. We seek your wisdom, not our own,” the minister said, asking God to “grant that the cause of truth, justice and humanity should in nowise suffer in the proceedings today.”
Mississippi Gov. Tate Reeves, a Republican, celebrated the decision in a statement Tuesday evening.
“The trigger law will go into effect on July 7th, as planned. This law has the potential to save the lives of thousands of unborn Mississippi children. It is a great victory for life,” said the governor, whose state boasts the nation’s highest infant death rate, highest fetal death rate, lowest overall life expectancy rate and where the pregnancy-related maternal death rate is 1.9 times higher than the U.S. as a whole.
Nick Judin contributed to this report.