Judge refuses to stop abortion ban from going into effect Thursday

by Bobby Harrison, Mississippi Today
July 5, 2022

Chancery Judge Debbra Halford refused to block Mississippi's abortion ban from going into effect on Thursday despite a 1998 ruling from the Supreme Court saying the state Constitution grants abortion rights.

Just hours after a 45-minute Tuesday morning hearing, Halford issued the eight-page decision ruling on Tuesday afternoon refusing to side with the state's only abortion provider, Jackson Women's Health Organization, which had requested a temporary restraining order to prevent laws from going into effect banning most abortions in Mississippi.

Abortion rights groups had argued that laws banning abortions in the state could not go into effect until a 1998 state Supreme Court decision, Pro-Choice Mississippi v. Kirk Fordice, was overturned. The 1998 decision, the abortion rights supporters argued, could only be overturned by the Mississippi Supreme Court.

But in ruling against the abortion rights groups, Halford said that it is likely that the current state Supreme Court will uphold the Mississippi laws banning most abortions now that the U.S. Supreme Court has ruled that abortion is not a protected right under the federal Constitution.

Halford wrote that since a right to an abortion as granted by the U.S. Constitution “is no longer the law of the land, reliance upon Fordice almost certainly will not be well-founded when pursuing this case in the (state) Supreme Court.”

“We are going to review the decision and consider our options,” said Jackson attorney Rob McDuff of the Mississippi Center for Justice. McDuff and Hillary Schneller, senior staff attorney for the Center for Reproductive Rights, represented Jackson Women's Health Organization in Tuesday's hearing in the Hinds County Chancery Court building.

They argued that Halford should halt the abortions ban from taking effect because the 1998 ruling by the state Supreme Court was the law of the land in Mississippi. It would take a new ruling from the state Supreme to reverse the 1998 ruling.

“The primary issue before you is whether the decision of the Mississippi Supreme Court is binding and we clearly believe it is,” McDuff said during the hearing.

Halford ultimately agreed with the arguments of Mississippi Solicitor General Scott Stewart, who argued on behalf of Attorney General Lynn Fitch. He told Halford that the 1998 state Supreme Court ruling was no longer binding law because of the recent landmark decision of the U.S. Supreme Court overturning the Roe v. Wade decision and the Casey v. Planned Parenthood decision that enshrined in the U.S. Constitution the right to an abortion.

“They depend on Roe and Casey. There is no Roe and Casey anymore. And there is no Fordice,” Stewart said, referring to the 1998 state Supreme Court ruling titled Pro-Choice Mississippi v. Kirk Fordice.

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Stewart had also argued the case before the U.S. Supreme Court, Dobbs vs Jackson Women's Health Organization, that resulted in the reversal of Roe and Casey.

What happens next depends on whether Halford's ruling is appealed to the state Supreme Court.

As the issue is litigated, though, the clock is ticking on abortion rights in Mississippi. A trigger law is slated to take effect on Thursday banning all abortions in the state except in cases where it is determined the life of the mother is at risk or in cases where there is rape reported to law enforcement.

Another Mississippi law that would take effect based on the U.S. Supreme Court ruling would ban all abortion after six weeks except in cases of medical emergencies.

About 50 spectators heard the Tuesday morning arguments, and a small group protected outside of the Hinds County Chancery Court building.

Stewart did not try to argue that the 1998 ruling did not say abortion was a right under the state Constitution. Instead, he argued that the majority in 1998 ruled that abortion was a right under the state Constitution to be in alignment with the federal Supreme Court in the Roe v. Wade decision.

But McDuff said nowhere in the ruling was any reference made to the state Supreme Court decision being contingent on the Roe v. Wade decision. He said in other rulings, the state Supreme Court had ruled that the rights granted in the Mississippi Constitution did not “inflate or deflate like a balloon” based on the rulings of the U.S. Supreme Court. But on Tuesday, Halford disagreed with McDuff.

McDuff pointed out to the court that abortion had been legal for a vast majority of Mississippi's statehood and that the judge should block the enactment of the laws banning abortion to give the Mississippi Supreme Court time to rule on the issue.

Stewart argued that it would not be a hardship to allow the laws to go into effect. He said programs had been put in place, such as pregnancy counseling programs, to help mothers who might otherwise had wanted to have an abortion.

Halford heard the case because all four Hinds County chancery judges recused themselves.

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