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Mississippi judge hears challenge to abortion trigger law

Attorneys representing the state’s only abortion clinic argue a 1998 Mississippi Supreme Court decision preserves the right to abortion. A judge has until Thursday to issue a restraining order preventing the procedure from becoming illegal.

JACKSON, Miss. (CN) — The fate of Mississippi's trigger ban on abortions is in the hands of a state judge who heard arguments Tuesday morning that the last abortion clinic in the state should remain open pursuant to a 24-year-old ruling finding the Mississippi Constitution provides an implied right to abortion.  

On June 27, three days after the U.S. Supreme Court’s decision overturning Roe. V. Wade, the Jackson Women’s Health Organization filed a lawsuit against State Health Officer Thomas Dobbs aiming to prevent enforcement of Mississippi's trigger law automatically banning abortions after Roe was overturned and a separate six-week abortion ban,

The trigger law was certified June 27 and is set to take effect July 7. The ban prohibits and criminalizes nearly all abortions in the state, leaving no exceptions for incest. If an abortion is sought for a case of rape, it must be reported to law enforcement first, but with the new law in place it is unlikely rape victims will find a doctor to perform the procedure in the state. 

In its complaint, JWHO cites a 1998 Mississippi Supreme Court decision in the case of Pro-Choice Mississippi v. Fordice, which states in part that “no right is held more sacred … than the right of every individual to the possession and control of his own person” and “no aspect of life is more personal and private than those having to do with one’s [own] reproductive system.” Crucially, the decision also found that “the state constitutional right to privacy includes an implied right to choose whether or not to have an abortion.”  

The case was assigned to Chancery Judge Debbie Halford last week after other judges in Hinds County recused themselves. Arguing for the state Tuesday morning, Solicitor General Scott G. Stewart said the Fordice ruling essentially adopted federal case law under Roe and to a lesser degree Planned Parenthood v. Casey, then “projected” that case law onto the state constitution. 

“In the past two weeks the law has changed dramatically and the court needs to decide its motion based on the law as it stands,” Stewart said. “The plaintiff's case rests entirely on the proposition that Fordice protects the right to abortion and that it remains good law. That is wrong.” 

Stewart argued the state high court can interpret the state constitution independently of the U.S. Supreme Court or with the guidance of the nation's top court, but the Fordice decision did neither of those.  

“It adopted U.S. Supreme Court case law and projected that case law onto our state constitution,” he said. “This was not an independent interpretation of our state constitution, it was not a decision to go beyond what the U.S. Supreme Court had done … it stuck to this reasoning that because the federal law protects the right to abortion, the state law did as well."

He added, "Fordice rested on the holding in Roe and on the holding in Casey. Those holdings have been unequivocally rejected and overruled. So necessarily, Fordice’s recognition of a right to abortion is no longer good law either.” 

Representing JWHO, attorney Robert McDuff asked Halford for a preliminary injunction or temporary restraining order, arguing the only way to nullify the Fordice decision is if the Mississippi Supreme Court overrules it or voters pass a constitutional amendment banning abortion. 

“The whole point of a Bill of Rights is there are some rights and decisions that belong to the individuals that are not subject to a vote and not subject to what a majority of what the state Legislature wants,” he said, adding abortion has been legal in state for more than 150 years. “The status quo has been the decision of whether to carry through with a pregnancy, the decision of whether to give birth, belongs to the individual and not the Legislature.”  

McDuff said the ban will not only cause irreparable harm to the clinic and its doctors — who can be arrested and charged with felonies for providing abortions — but also to constituents who otherwise are not afforded expanded benefits under Medicaid or postpartum benefits beyond two months after birth.  

“The decision to carry a pregnancy to term and bear a child against your will, the decision about whether to do that is not something the state can force on you,” McDuff said. “You do not become the property of the state or the appendage of the state just because you become pregnant.”  

Halford denied the state's request for immediate summary judgment, but indicated she would take the briefings under consideration and issue a written order. JWHO, the state’s only abortion clinic, will continue to see patients until the trigger ban takes affect Thursday. The administrator of the clinic announced last week that once abortion is outlawed in Mississippi, she plans to move the clinic to New Mexico.   

The complaint was filed on a JWHO’s behalf by the Mississippi Center for Justice, the Center for Reproductive Rights and the law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP. 

“The government should not be deciding matters of childbirth for the women and families of Mississippi. Mississippi lawmakers have proven the health and well-being of its poor women and families is not a priority," said Vangela M. Wade, president and CEO of the Mississippi Center for Justice, in a statement last week. "They refuse to expand postpartum maternal care, increase the minimum wage, or expand Medicaid to provide health care for our working poor. The hypocrisy would be comical if it wasn’t so devastatingly harmful.” 

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