Should Mississippi, like Kansas, vote on abortion? Would the outcome differ?

In Mississippi, like Kansas, the Supreme Court has said the state Constitution provides a right to an abortion.

The Kansas Supreme Court made its ruling in 2019. The Mississippi ruling came in 1998.

In an effort to supersede the Kansas Supreme Court ruling, the Legislature placed on the ballot a proposal to proclaim that the state Constitution does not include abortion rights.

That proposal was defeated Tuesday by Kansas voters by a 59% to 41% margin, meaning abortion remains legal in the state viewed as one of the most conservative in the nation.

Mississippi’s Supreme Court ruling said, “While we do not interpret our Constitution as recognizing an explicit right to an abortion, we believe that autonomous bodily integrity is protected under the right to privacy … Protected within the right of autonomous bodily integrity is an implicit right to have an abortion.”

There are two ways to reverse that 1998 Supreme Court ruling. The high court in a new case could overturn it. But since there is no abortion case pending before the Supreme Court, it is difficult to ascertain how such a reversal could occur. Another option would be to attempt what Kansas tried to do and amend the Constitution to state explicitly there is no right to an abortion. Like in Kansas, the proposal to amend the Constitution also would require voter approval.

The question then is whether the outcome in Mississippi would be different than in Kansas. Most observers were surprised that the anti-abortion proposal in Kansas was defeated. Mississippi Center for Justice attorney Rob McDuff, who has defended abortion rights, said he is not so sure the outcome here would be different than in Kansas.

“Mississippi is a conservative state in many ways, but a lot of people here believe in the rights of the individual and believe government should not dictate a person’s beliefs,” McDuff said. “For centuries, people have debated and disagreed about the fundamental question of when life begins.”

McDuff continued: “When a woman is faced with the possibility of carrying a pregnancy inside her own body and bearing a child against her will, I think most Mississippians believe this is a decision for her to make in light of her own beliefs, and perhaps in consultation with her family and her doctor and her pastor, and not a decision for the majority of the state Legislature. That is what Mississippians said the last time they were asked this question in 2011, when, by a wide margin, they voted no on an amendment that would have banned abortion for purposes of our state Constitution. I expect the answer would be the same today. Recent polling in Mississippi bears that out.”

A recent poll commissioned by the ACLU of Mississippi found 51% opposed the overturning of Roe v. Wade that provided a national right to an abortion.

In 2012, after Mississippi voters rejected the so-called “personhood” amendment that stated life begins at conception, Speaker Philip Gunn authored a resolution saying abortion was not a constitutional right. That resolution died in the House Constitution Committee. Had it been passed by a two-thirds vote of both legislative chambers and been approved by voters, it would have overturned the 1998 Supreme Court ruling saying the Mississippi Constitution granted the right to an abortion.

Gunn, who was in his first year as speaker in 2012, said recently he did not remember details about the proposal. When asked if the House might take up a similar proposal in the 2023 session, he said, “We are looking at a lot of things.”

Mississippi Gov. Tate Reeves, ignoring the Supreme Court ruling, recently said, “I don’t think we need a constitutional amendment in Mississippi because we have a state statute which speaks to that. The only abortion clinic that operated in our state is now closed, I don’t know that it has to be in the Constitution.”

It’s true that laws banning most abortions in the state went into effect when the U.S. Supreme Court overturned the national constitutional right to an abortion in a landmark case from Mississippi. The practical effect of those laws is that abortions are not being performed in Mississippi.

But that 1998 decision hangs out there. At some point, there could be a conflict in the Mississippi judicial system between that constitutional right to an abortion as cited by the Mississippi Supreme Court and the normally lesser-in-the-eyes of the judiciary laws or statutes.

At the very least, by ignoring that Supreme Court ruling, a precedent is being established in the state that the Mississippi Supreme Court can be — well, ignored.

A simple way to resolve the conflict between state law and the Mississippi Constitution is to let the people vote like they did in Kansas.

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.