1998 state court ruling leads to lawsuit that could prolong Mississippi abortion fight

by Bobby Harrison, Mississippi Today
June 27, 2022

An all but forgotten 1998 ruling by the state Supreme Court declaring a right to an abortion is granted in the state Constitution could prolong the fight over abortion in Mississippi despite last week's landmark decision overturning Roe v. Wade.

The Mississippi Supreme Court in the 1998 decision, Pro-Choice Mississippi v. Kirk Fordice, said that the state Constitution — not just the U.S. Constitution — also granted abortion rights.

The Pro-Choice Mississippi v. Fordice decision would supersede Mississippi's trigger law, passed in 2007 by the Legislature, that stated that abortion would be illegal in the state after the U.S. Supreme Court overturned Roe v. Wade. 

Jackson Women's Health Organization has filed a lawsuit in Hinds County Chancery Court arguing the trigger law is invalid because of the constitutional right to an abortion spelled out by the state Supreme Court in the 1998 decision. The lawsuit also will contend a separate state law that bans abortions after six weeks also should be invalid because of the same ruling. A federal court injunction blocking the six-week law from taking effect will be lifted based on the U.S. Supreme Court ruling last Friday overturning Roe v. Wade.

“The Mississippi Supreme Court's 1998 decision interpreting the Mississippi Constitution exists completely independent of the U.S. Supreme Court's decisions about the federal Constitution. It is binding precedent.” said Rob McDuff of the Mississippi Center for Justice and who was an attorney on the 1998 lawsuit. “As confirmed by the Mississippi Supreme Court in that case, the decision about whether and when to have children belongs to individuals and families, not to the state's politicians.” 

Under the trigger law, Mississippi Attorney General Lynn Fitch is charged with certifying that Roe v. Wade had been overturned by the U.S. Supreme Court.

Fitch, whose office filed the lawsuit in Dobbs v. Jackson Women's Health Organization leading to the reversal of Roe, filed the certification Monday morning, meaning abortions in the state will be illegal within 10 days except in the cases of the mother's life being in danger and of a law enforcement-reported rape. It is not clear how the lawsuit will impact the certification and how abortion will be handled in the state while the lawsuit is adjudicated.

The 1998 decision was written by then-Justice Michael Sullivan of Hattiesburg. He was joined by four other members of the nine-person court.

Sullivan wrote, “The right to privacy in article III, § 32, of the Mississippi Constitution encompasses the right to autonomous bodily integrity. The right to choose to have an abortion, like many other medical procedures, is included in the right to autonomous bodily integrity. While we do not find the Mississippi Constitution to provide an explicit right to an abortion, abortion is protected within the penumbras of the right to privacy.”

The 1998 case was filed by Pro-Choice Mississippi challenging restrictions placed on abortion by the state, such as requiring a 24-hour waiting period after receiving counseling at the abortion clinic, requiring licensing of the abortion clinics and requiring consent of both parents for minors to receive an abortion. The court ruled that those restrictions were allowable and not an undue burden on women, but still recognized a right to an abortion under the Mississippi Constitution.

The groups involved in filing the lawsuit for Jackson Women's Health Organization, the last abortion clinic in the state, are the Mississippi Center for Justice, the Center for Reproductive Rights, and the law firm Paul, Weiss, Rifkind, Wharton & Garrison,

“Abortion remains legal in Mississippi,” said Hillary Schneller, senior staff attorney for the Center for Reproductive Rights. “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.”

Mississippi is one of 13 states with a trigger law. But as Mississippi's trigger law has been discussed in the state and nationwide, no one has taken into account the fact that the state Supreme Court has said the Mississippi Constitution protects the right to an abortion.

Apparently, Mississippi legislators also had forgotten about the 1998 state Supreme Court decision when they passed the trigger law in 2007.

“The government should not be deciding matters of childbirth for the women and families of Mississippi,” said Vangela M. Wade, president and CEO of Mississippi Center for Justice. 

Editor's note: Vangela M. Wade is a member of Mississippi Today's board of directors.

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.