Abortion is technically both legal and illegal in Mississippi. New lawsuit asks Supreme Court to clarify

by Bobby Harrison, Mississippi Today
November 14, 2022

A Jackson-based conservative think-tank filed a lawsuit Monday that aims to clear up a bizarre legal conundrum in Mississippi: that abortion is technically both legal and illegal at the same time.

The Mississippi Center for Public Policy filed a lawsuit Monday in an attempt to get the state Supreme Court to reverse its 1998 ruling that said the Mississippi Constitution provides a right to an abortion.

That decades-old ruling — Pro Choice Mississippi v. Fordice — has been in conflict with two new state laws that took effect this summer after the U.S. Supreme overturned Roe v. Wade, which had previously established a national right to an abortion.

After the U.S. Supreme Court decision in late June overturning Roe v. Wade, two Mississippi laws went into effect. One banned all abortions except in cases of rape and when the life of the mother was in jeopardy. A second law banned all abortions except for cases of medical emergency.

But officials at Mississippi Center for Public Policy say those two laws are in conflict with the state Supreme Court ruling that said the state constitution provides a right to an abortion. The center's lawsuit attempts to ensure the two new laws that restrict abortion are not negated by the 1998 Pro Choice Mississippi v. Fordice ruling.

“This legal uncertainty has placed Mississippi physicians in an impossible ‘Catch-22,'” said the center's news release. “…Whether elective abortions are ‘lawful' in Mississippi depends on whether the Mississippi Supreme Court's opinion in Fordice is still valid.”

READ MORE: Mississippi, where abortion is technically both legal and illegal at the same time

The U.S. Supreme Court ruling overturning Roe v. Wade came in a case brought by Mississippi and argued by the office of state Attorney General Lynn Fitch. The landmark case — Dobbs v. Jackson Women Health Organization — resulted in the state's only abortion clinic closing.

“In the Dobbs case, Mississippi secured a major victory for human rights and the rule of law,” said Aaron Rice, director of the Mississippi Justice Institute, which is the legal arm of the Mississippi Center for Public Policy. “Now it's time to finish the job and protect the right to life in the state that took Roe down.”

The case was filed in Hinds County Chancery Court. The press release said it will be up to the state Supreme Court to ultimately rule on whether to reverse the ruling providing a right to an abortion in the Mississippi Constitution.

Right after the U.S. Supreme Court decision, Jackson Women's Health Organization, then providing abortion services in Jackson, took legal action in Hinds County Chancery Court trying to block the enactment of the laws banning abortion in Mississippi. The Mississippi Center for Justice, arguing on behalf of the Jackson Women's Health Organization, said that the state laws banning abortions would not trump the Mississippi Supreme Court ruling saying that the Constitution provided a right to an abortion.

READ MORE: Supreme Court rejects plea for quick ruling on effort to stop abortion ban

In an unusual ruling in early July, Chancery Judge Debbra Halford of Meadville, appointed to hear the case by the state Supreme Court, refused to block the laws banning abortions. One of her primary reasons for not blocking the laws is because she predicted the current state Supreme Court would reverse the ruling providing a right to abortion in the Mississippi Constitution.

The Mississippi Center for Justice appealed to the Supreme Court. But the state's highest court refused to take up the case on an expedited schedule. During the uncertainty, Jackson Women's Health Organization closed and the Mississippi Center for Justice dropped the appeal.

Now the conservative leaning Mississippi Center for Public Policy is trying to renew the case.

“We will review this lawsuit and consider whether we should intervene,” said Rob McDuff, an attorney with the Mississippi Center for Justice that represented the Jackson Women's Health Organization.

The Mississippi Justice Institute has brought the lawsuit on behalf of the American Association of Pro-Life Obstetricians and Gynecologists, according to the news release.

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