Supreme Court could assure abortion ban in Mississippi, or people could vote

by Bobby Harrison, Mississippi Today
July 3, 2022

For abortion to be banned in Mississippi, a 1998 Supreme Court ruling — that “abortion is protected” under the state Constitution — must be reversed.

The most obvious way for that reversal to occur is for the same Mississippi Supreme Court, but with different judges than in 1998, to write a new decision saying abortion is not a protected right under the state Constitution.

The state Supreme Court most likely will have a chance to make that reversal thanks to a lawsuit filed claiming a Mississippi trigger law banning most abortions upon the repeal of Roe v. Wade cannot go into effect because of the 1998 state Supreme Court ruling. A very conservative Supreme Court can simply reverse that 1998 decision and the trigger law can go into effect banning most abortions in the state.

But another way to reverse that 1998 decision is to let the people vote.

Gov. Tate Reeves could call a special session of the Mississippi Legislature for the purpose of passing a constitutional resolution. That resolution — presumably to ban abortion or most abortions in Mississippi — would then go before the voters. If the voters approved it, presto — abortion would be banned.

The election could take place on Nov. 8 — the date of the already scheduled general election. But if legislators wanted, they could schedule a special election earlier to vote on the constitutional amendment to ban abortions. In the past, legislators have scheduled votes on constitutional amendments for dates other than the date of the regularly scheduled general election.

Until the 1998 Pro-Choice Mississippi v. Fordice is overturned either by a new Supreme Court ruling or by the vote of the people, it is difficult to see a path for the trigger law to take effect in the state. It is the same principle that applied nationally in the 1973 Roe v. Wade decision — abortion could not be banned until the U.S. Supreme Court wrote a new decision reversing the Roe decision that said abortion rights were protected by the federal Constitution.

The U.S. Supreme Court, of course, reversed Roe in late June in a Mississippi case, Dobbs v. Jackson Women's Health Organization. But the U.S. Supreme Court in the Dobbs ruling did not and could not reverse what the state Supreme Court said in 1998 about the right to an abortion being found in the Mississippi Constitution.

“We find that the state constitutional right to privacy includes an implied right to choose whether or not to have an abortion,” the late Mississippi Supreme Court Justice Michael Sullivan wrote for the majority in 1998.

Sullivan further wrote that when the Mississippi Constitution was written in 1890, “abortion was legal until quickening (until fetus movement) some four to five months into pregnancy.”

There has been only one statewide vote involving abortion, which occurred in 2011 on what was known as the “personhood amendment.” The proposal would have defined as a person “every human being from the moment of fertilization, cloning, or the equivalent thereof.”

The ballot initiative process, where sponsors gather signatures to place issues before voters, was used for the personhood amendment. It was soundly defeated 58% to 42% by voters even though most of the state's politicians, including Phil Bryant who was elected governor that year, supported it. Had it passed, the proposal would have been placed in the state Constitution.

The personhood proposal might have gone steps further on banning abortions than most Mississippi voters wanted to go. Based on the personhood vote, even many conservative Mississippians favor exemptions from abortion bans for the life of the mother, for rape and for other reasons. But on the other hand, House Speaker Philip Gunn said recently he believes life begins at conception and did not appear to favor any exemptions.

Legislators could craft the constitutional ban as strict or with as many exceptions as they want and then let the people vote.

One of the primary arguments used for overturning Roe v. Wade was that courts should not decide the controversial issue.

Mississippi Solicitor General Scott Stewart, arguing before the U.S. Supreme Court for Attorney General Lynn Fitch's office in the landmark Dobbs case, said, “The Constitution places its trust in the people. On hard issue after hard issue, the people make this country work. Abortion is a hard issue. It demands the best from all of us, not a judgment by just a few of us. When an issue affects everyone — and when the Constitution does not take sides on it — it belongs to the people.”

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