Pro-Choice Mississippi v. Kirk Fordice

Abortion clinic drops its lawsuit, leaving legality of abortion in Mississippi in limbo

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Abortion clinic drops its lawsuit, leaving legality of abortion in Mississippi in limbo

Attorneys for announced Tuesday it was dropping its legal efforts to continue to perform abortions in Mississippi.

Rob McDuff, an attorney for the who represented the clinic, said the failure of the state Supreme Court to hear the case “on an emergency basis” led to the decision for Jackson Women’s Health Organization to drop the and to relocate to another state where abortions are not banned.

The clinic was the last provider in the state.

The clinic had filed an emergency petition with the state Supreme Court asking the justices to prevent from going into effect state laws banning most abortions in Mississippi. The clinic pointed out that in 1998, the state Supreme Court had ruled that abortion was a right protected by the Mississippi Constitution. That ruling, the clinic argued, would supersede the state laws passed in later years to ban abortions.

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

But in a statement Tuesday, the Mississippi Center of Justice said that because of the Supreme Court’s refusal to hear the abortion clinic appeals in an expedited matter, the lawsuit was being dropped. Diane Derzis, the owner of the clinic, recently sold the building in Jackson’s Fondren neighborhood where the clinic, known as the Pink House, was located. She is continuing with plans to open a clinic in New Mexico.

“In recent years, the Mississippi Center for Justice, the Center for Reproductive Rights, and the Paul Weiss law firm have filed several lawsuits to keep the clinic’s doors open, and to preserve and expand access to abortion in Mississippi,” said Vangela Wade, chief executive officer for the Mississippi Center for Justice. “We will continue to work for the day that right is restored and that every Mississippian has the resources to make their own reproductive and family planning decisions.”

With the decision to drop the lawsuit, left unresolved is the 1998 state Supreme Court decision in that recognized the right to abortion as part of the Mississippi Constitution. After that decision was issued, the state Legislature in 2007 passed a law saying most abortions would be banned in Mississippi if the ever stripped away the right to an abortion as part of the federal Constitution. And in 2019 the state Legislature passed a ban on all abortions after six weeks except in cases of medical emergencies.

State officials said those laws took effect after the U.S. Supreme Court in late June overturned Roe v. Wade, which granted the right to an abortion, in a case involving Jackson Women’s Health Organization.

But Jackson Women’s Health Organization filed a lawsuit to block those laws from taking effect based on the 1998 state Supreme Court ruling. The lawsuit argued that the Supreme Court ruling, which was based on the Constitution, trumped state law. But Chancellor Debbra Halford of Franklin County rejected the clinic’s arguments. The clinic appealed that ruling to the Supreme Court, but on Tuesday decided to drop the appeal.

While that appeal was pending before the Supreme Court, doctors at the clinic stopped performing abortions opting not to risk the punishment doled out in state law – a possible prison sentence and a loss of medical license – even though in the lawsuit they argued they still had the right to perform abortions based on the 1998 state Supreme Court ruling.

Mississippi Today could not get a definitive answer from the Supreme Court on whether it could take up the lawsuit even though it was dropped and reconsider the 1998 ruling granting a constitutional right to an abortion.

Theoretically, a doctor could perform abortions in the state and argue in court he or she had the right based on the 1998 Supreme Court ruling. But the doctor would be risking his or her livelihood based on how the court ruled on the issue of the Constitution versus state law.

In a statement, McDuff said, “Diane’s work is not done, and we applaud her commitment to continuing to ensure people can exercise their right to abortion. As she has stated, she is working to open a clinic in Las Cruces, New Mexico, where she can provide abortion care without fear of being put in prison for 10 years. We thank Diane; the clinic’s executive director, Shannon Brewer; and its medical director, Dr. Carr-Ellis; all of the clinic’s employees; and the Pink House Defenders, for the heroic work they have done so Mississippians could make their own decisions about pregnancy and childbirth.”

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.

Judge refuses to stop abortion ban from going into effect Thursday

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Judge refuses to stop abortion ban from going into effect Thursday

Chancery Judge Debbra Halford refused to block Mississippi’s 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, , 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, , was overturned. The 1998 decision, the abortion rights supporters argued, could only be overturned by the .

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 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 . 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 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 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 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.

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

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.

Judge ponders blocking law that bans abortions in Mississippi

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Judge ponders blocking law that bans abortions in Mississippi

Mississippi is just hours from banning in most instances, but an eleventh-hour before a special state judge could at least temporarily delay the “trigger law” from going into effect.

The ruled in 1998 that abortion is a protected right under the state Constitution and that right cannot be taken away unless the state’s high court reverses itself, attorneys representing the state’s only abortion clinic told a chancery judge on Tuesday.

Based on that 1998 ruling, Jackson attorney Rob McDuff asked Chancery Judge Debbra Halford of Franklin County to issue an injunction preventing laws that would ban most abortions in Mississippi from taking effect. McDuff and Hillary Schneller, senior staff attorney for the Center for Reproductive Rights, represented in the lawsuit.

“The primary issue before you is whether the decision of the Mississippi Supreme Court is binding and we clearly believe it is,” McDuff said Tuesday morning during a hearing in the Chancery Court Building that lasted about 45 minutes.

READ MORE: Hearing set in Mississippi lawsuit trying to prevent abortion ban

Mississippi Solicitor General Scott Stewart, arguing on behalf of Lynn Fitch, told Halford that the 1998 state Supreme Court ruling was no longer binding law because of the recent landmark decision of the overturning the 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 .

After the hearing, Halford said she would soon issue a decision regarding whether to grant the temporary restraining order allowing abortions to continue to be performed in Mississippi. But at this time, she will not rule on the actual merits of the case.

It is likely her decision will be appealed by the losing side to the state Supreme Court.

As the issue is litigated, though, the clock is ticking on abortion rights in Mississippi. A trigger law would 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.

But on Tuesday in the hearing attended by about 50 spectators with a handful of protesters outside the courthouse, McDuff told the chancery judge that the state Supreme Court ruling would supersede the laws and she did not have the authority to ignore Mississippi’s highest court.

He conceded the current Supreme Court could reverse its 1998 ruling.

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.

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 is hearing the case because all four Hinds County chancery judges recused themselves.

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

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

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

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

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

The in the 1998 decision, , 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 overturned Roe v. Wade. 

Jackson Women’s Health Organization has filed a 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 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, 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. 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.

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