Since the United States Supreme Court in a Mississippi case stripped away a national right to an abortion, citizens in six states, including five earlier this month, have voted to either preserve or expand abortion rights.
In no state have voters opted to restrict or to take away abortion rights since the Mississippi case – Dobbs v. Jackson Women’s Health Organization – was decided in late June by the nation’s highest court.
An argument can be made that Mississippians, like voters in conservative states such as Kansas and Kentucky and liberal states like California and Vermont, should be allowed to vote on whether they support or oppose restricting abortion rights.
After all, Mississippi is an unmitigated mess when it comes to the issue of abortion even though it is the state that successfully brought the lawsuit that led to the overturning of the 1973 Roe v. Wade Supreme Court decision that guaranteed a national right to an abortion. It is true that there are no abortion clinics in Mississippi, but it reasonably could be argued that abortion is indeed legal in the Magnolia State.
The state has two abortion laws on the books. They are:
A ban on all abortion except in the case of rape or to preserve the life of the mother.
A six-week ban except in cases of medical emergency.
But the Mississippi Supreme Court – in Pro Choice Mississippi v. Fordice – ruled in 1998 that the state constitution provides a right to an abortion.
“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.
That ruling has never been overturned.
In the normal judicial process, the laws passed by the Legislature imposing the abortion bans would not trump the ruling of the Supreme Court. What appears to have occurred is that the Supreme Court ruling has been rendered moot since the only abortion provider moved out of the state – fearing its employees could face punishment (possible prison time) in conservative Mississippi even though the state’s highest court said that a right to an abortion exists. In other words, there is no abortion provider in the state to challenge the constitutionality of the two laws banning abortion.
Recognizing the state’s conundrum, the conservative Mississippi Justice Institute, which is the legal arm of the Mississippi Center for Public Policy, recently filed a lawsuit, hoping to get the state Supreme Court to overturn its 1998 ruling.
At the very least, the issue of abortion is still murky in Mississippi. The Mississippi Justice Institute recognizes this.
“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 “Now it’s time to finish the job and protect the right to life in the state that took Roe down.”
The lawsuit filed by the Mississippi Justice Institute is asking the Supreme Court to reverse the 1998 ruling in Fordice v. Planned Parenthood just as the U.S. Supreme Court reversed the Roe v. Wade decision.
The Justice Institute filed the lawsuit on behalf of the American Association of Pro-Life Obstetricians and Gynecologists. According to the lawsuit, the Michigan-based group has more than 6,000 members nationwide, including 35 in Mississippi. The lawsuit said its members are being placed in legal jeopardy because abortion has been banned under the two aforementioned laws. But based on the 1998 state Supreme Court ruling, doctors could be placed in legal jeopardy if they refuse to refer a woman to an abortion provider, the lawsuit alleges.
Whether that circuitous argument is enough to give the Michigan group “standing” to pursue such a case in Mississippi remains to be seen. The lawsuit is filed in Hinds County Chancery Court.
No doubt, abortion providers would have “standing” to bring the case and in fact did this past summer. But the Jackson Women’s Health Organization, which originally filed a lawsuit, opted to move out of state and drop the case when the state Supreme Court refused to hear the issue in an expedited manner. The decision not to pursue the case meant the Supreme Court was never given a chance to reverse its 1998 ruling. It is likely the current justices would reverse the ruling if given the opportunity.
Thus far no abortion provider has sought to intervene in the case brought by the anti-abortion group.
The Mississippi Legislature could settle this complex issue easily by voting early in the 2023 session to place on the ballot as soon as possible a proposal to reverse the state Supreme Court decision granting the right to an abortion.
Then the citizens could decide just as they have in six other states.
This analysis was produced by Mississippi Today, a nonprofit news organization that covers state government, public policy, politics and culture. Bobby Harrison is Mississippi Today’s senior Capitol reporter.