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Lawsuit filed to block Mississippi trigger ban

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abortion protestors
James McNellis from Washington, DC, United States, CC BY 2.0, via Wikimedia Commons

Jackson Women’s Health Organization (JWHO)—the last abortion clinic in Mississippi—filed a lawsuit on Monday asking Hinds County Chancery Court to prevent the State of Mississippi from enforcing its Trigger Ban, which would prohibit nearly all abortions in Mississippi. The Trigger Ban is set to take effect in 10 days, following a devastating ruling from the U.S. Supreme Court that overturned Roe v. Wade. The lawsuit also asks the Court to ensure Mississippi’s 6-Week Ban, which would prohibit most abortions in the state, is not enforced.

Plaintiffs argue that Mississippians have a separate right to abortion under the Mississippi Constitution, a right confirmed by a 1998 decision of the Mississippi Supreme Court. In that 1998 decision, known as Pro-Choice Mississippi v. Fordice, the Mississippi Supreme Court held that “[n]o right is held more sacred . . . than the right of every individual to the possession and control of his own person,” “no aspect[] of life is more personal and private than those have to do with one’s own reproductive system,” and “the state constitutional right to privacy includes an implied right to choose whether or not to have an abortion.” Because that 1998 decision remains good law, the lawsuit argues that it requires the state to refrain from enforcing the Bans and closing JWHO’s clinic.

Filed on JWHO’s behalf by the Mississippi Center for Justice (MCJ), the Center for Reproductive Rights, and the law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP, the lawsuit comes three days after the U.S. Supreme Court overruled Roe v. Wade, taking away the right to abortion under the U.S. Constitution.

Mississippi’s Trigger Ban is designed to take effect 10 days after the Mississippi Attorney General publishes a certification that the U.S. Supreme Court has overruled Roe and that it is reasonably probable the ban would be upheld by the U.S. Supreme Court. Earlier today, the Attorney General published her certification. The 6-Week Ban is currently blocked by an injunction in federal court.

“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 Mississippi Center for Justice, who is one of the JWHO clinic’s long-time lawyers. “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.” McDuff and the Center for Reproductive Rights brought the Pro-Choice Mississippi case that secured the right to abortion under the Mississippi Constitution. Together, they have also represented Jackson Women’s Health Organization since it opened in 1996.

“Across the country, we are already seeing the devastating harm and utter chaos the U.S. Supreme Court has caused people seeking abortion care, providers, and practical support organizations. As of Friday, clinics across the region were forced to turn away patients—some who had driven hours and hundreds of miles from home,” said Hillary Schneller, a senior staff attorney at the Center for Reproductive Rights, who also represents JWHO in this case. “Abortion remains legal in Mississippi. 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’s Constitution and its Supreme Court have long found an independent right to privacy, separate and apart from the U.S. Constitution that encompasses and protects the right to bodily autonomy, including the decision whether and when to bear children. As we have for the past decade, we are committed to vigorously advocating for the clinic, which has the duty to offer the best medical care to its patients, who would be denied critically important healthcare under the state bans,” said Paul, Weiss partner Alexia Korberg, co-counsel to JWHO in the litigation. “We will continue working closely with CRR and Rob McDuff of MCJ, who has dedicated his life to vindicating the rights of the people of Mississippi, to ensure that they continue to have access to safe and legal abortion care, as is their right as Mississippians.”

“The government should not be deciding matters of childbirth for the women and families of Mississippi,” said Vangela M. Wade, president and CEO of MCJ. “Mississippi lawmakers have proven the health and well-being of its poor women and families is not a priority. 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. MCJ is proud to once again represent the Clinic along with our partners as we now invoke this established precedent from the Mississippi Supreme Court to prevent government intrusion into the private lives of Mississippi citizens.”

The Center for Reproductive Rights, the Mississippi Center for Justice, and Paul, Weiss have previously represented JWHO in various federal court challenges including the case that led to the U.S. Supreme Court’s decision of last Friday. Consulting with the plaintiffs’ legal team on this new case is University of Arizona James E. Rogers College of Law professor Christopher L. Griffin, Jr.

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