ANTI-CHOICE LAWS
Abortion Bans
NEAR-TOTAL
Mississippi has not repealed its pre-Roe abortion ban, which is unconstitutional and unenforceable.
The ban provides that any person who willfully and knowingly causes an abortion by any means is guilty of a felony and will be imprisoned for one to ten years, unless the abortion is necessary to preserve the woman's life or the pregnancy is the result of rape. Miss. Code Ann. § 97-3-3 (Enacted 1952; Last Amended 1997). A court held that this law's provisions limiting the circumstances in which a woman may obtain an abortion are unconstitutional. Spears v. State, 278 So. 2d 443 (Miss. 1973).
NEAR-TOTAL WITH DELAYED EFFECTIVE DATE ("TRIGGER" BAN)
In 2007, Mississippi enacted a near-total ban on abortion, to become effective if the Supreme Court overturns Roe v. Wade. The ban prohibits any person from using or prescribing any instrument, medicine, drug, substance, or device with intent to procure an abortion, unless the performance of an abortion is necessary to preserve the woman's life or the pregnancy is caused by rape and that rape has been formally reported to law enforcement. A person who performs a prohibited abortion could be imprisoned for up to 10 years. Miss. Code Ann. § 41-41-45 (Enacted 2007).
AFTER 12 WEEKS
Mississippi's unconstitutional and unenforceable ban outlaws abortions performed as early as twelve weeks. Miss. Code Ann. §§ 41-41-71, 41-41-73 (Enacted 1997).
Mississippi's ban is unconstitutional according to the U.S. Supreme Court's decision in Stenberg v. Carhart. 530 U.S. 914 (2000). In Stenberg, the Court held that a similar ban, which lacked an exception to protect a woman's health and was written so broadly as to ban more than one procedure, placed an undue burden on a woman's right to choose.
Mississippi's unconstitutional law makes the performance of any abortion procedure that falls within a broad definition a felony punishable by a fine of up to $25,000, imprisonment for up to two years, or both, unless the procedure is necessary to preserve the life of a woman endangered by a physical disorder, illness, or injury and no other medical procedure will suffice. Miss. Code Ann. §§ 41-41-71, 41-41-73 (Enacted 1997).
There is also a Federal Abortion Ban, which applies nationwide regardless of state law. The federal ban prohibits the performance of certain second trimester abortions and does not contain an exception for a woman's health. In April 2007, the U.S. Supreme Court upheld the ban, making it the first time since Roe v. Wade that the Court has upheld a ban on a previability abortion procedure. Click here to read more about the Federal Abortion Ban.
Biased Counseling & Mandatory Delay
A woman may not obtain an abortion until at least 24 hours after the attending or referring physician orally and in person: (1) informs her of the probable gestational age of the "unborn child"; (2) describes the medical risks associated with the procedure, including, when medically accurate, infection, hemorrhage, breast cancer, danger to subsequent pregnancies, and infertility; (3) describes the risks of carrying the pregnancy to term; and (4) tells her the name of the physician who will provide the abortion.
In addition, at least 24 hours prior to an abortion, the woman must receive a state-mandated lecture by the physician or physician's agent, in person, that must include: (1) that medical assistance benefits may be available for prenatal care, childbirth, and neonatal care; (2) that the "father" is liable for child support even if he has offered to pay for the abortion; and (3) that she has a right to review state-prepared materials that describe the "unborn child" and list agencies that offer alternatives to abortion.
The state-prepared materials must: (1) describe with color pictures the anatomical and physiological characteristics of the fetus at two-week gestational increments, including the possibility of survival; (2) describe the medical risks associated with the procedure and with carrying a pregnancy to term; (3) state that medical assistance benefits may be available for prenatal care, childbirth, and neonatal care and that the "father" is liable for child support even if he has offered to pay for an abortion; and (4) provide a comprehensive list of public and private agencies and services, including adoption agencies, available to assist the woman through pregnancy, upon childbirth, and while the child is dependent or provide a toll-free 24-hour hotline that can be called to obtain such a list.
Miss. Code Ann. §§ 41-41-33, -35 (Enacted 1991; Last Amended 1996).
The state-prepared materials include enlarged color photographs of fetuses. Division Of Health Facilities Licensure & Certification, Miss. State Dep't Of Health, Informed Consent Information And Resources (Rev. Aug. 1996).
Both a federal and a state court upheld a previous version of this law under the federal and state constitutions. Barnes v. Moore, 970 F.2d 12 (5th Cir. 1992), cert. denied, 506 U.S. 1021 (1992); Pro-Choice Miss. v. Fordice, 716 So.2d 645 (Miss. 1998).
Counseling Ban/Gag Rule
No money in the Mississippi Children's Trust Fund, established to assist child abuse and neglect programs and services, may be used for abortion counseling. Miss. Code Ann. §§ 93-21-301, -309 (Enacted 1989).
Public-school nurses are prohibited from providing counseling to any student or referring any student to abortion counseling or providers. Miss. Code Ann. § 41-79-5 (Enacted 1987; Last Amended 2000).
Insurance Prohibition for Abortion
No public funds may be used to pay for insurance coverage for abortion for state employees, except in cases when the procedure is necessary to preserve the woman's life, the pregnancy is the result of rape or incest, or the fetus has an anomaly incompatible with live birth. Miss. Code Ann. § 41-41-91 (Enacted 2002).
Public Facilities Restriction
No public funds may be used to provide facilities for an abortion, except in cases when the procedure is necessary to preserve the woman's life, the pregnancy is the result of rape or incest, or there is a fetal anomaly incompatible with live birth. Miss. Code Ann. § 41-41-91 (Enacted 2002).
Refusal to Provide Medical Services
Mississippi allows certain individuals or entities to refuse to provide women specific reproductive health services, information, or referrals.
HEALTH CARE PROVIDER AND HEALTH CARE INSTITUTION REFUSAL CLAUSES
Mississippi allows certain individuals or entities to refuse to comply with individual health care instructions or decisions based on conscience.
To whom does the refusal clause apply? Health care providers, health care institutions, and health care payers.
What does the refusal clause allow? A health care provider may refuse to comply with an individual health care instruction or decision and may refuse to participate in any health care service for reasons of conscience. A health care institution may refuse to comply with an individual health care instruction or health care decision and may refuse to participate in any health care service for reasons of conscience. A health care payer may refuse to pay or arrange for payment of a health care service for reasons of conscience.
No health care provider, health care institution, or health care payer may be held civilly, criminally, or administratively liable for refusing to participate in a health care service for reasons of conscience.
It is unlawful to discriminate against a health care provider, health care institution, or health care payer for refusing to participate in a health care service for reasons of conscience.
Does the law require the refusing entity to notify the persons affected? Yes, under some circumstances. A health care provider or health care institution that refuses to comply with an individual health care instruction or health care decision must promptly inform the patient.
Are there circumstances under which a refusal clause may not be exercised? No.
Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for the requested health services? No.
Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? Yes, under some circumstances. A health care provider or health care institution that refuses to comply with an individual health care instruction or health care decision must (1) inform the patient promptly; (2) make all reasonable efforts to assist in the transfer of the patient to another health care provider or institution that is willing to comply with the instruction or decision; and (3) provide continuing care to the patent until the transfer is accomplished or until it appears that a transfer cannot be accomplished.
Miss. Code Ann. §§ 41-41-215 (Enacted 1998; Last Amended 1999), 41-107-1 to -13 (Enacted 2004).
Restrictions on Low-Income Women's Access to Abortion
Mississippi prohibits public funding for abortion for women eligible for state medical assistance for general health care unless the procedure is necessary to preserve the woman's life, the pregnancy is the result of rape or incest, or when there is a fetal malformation incompatible with live birth. Miss. Code Ann. § 41-41-91 (Enacted 2002); Miss. Div. of Medicaid, Provider Policy Manual, § 53.08 (Sept. 1, 2002), at http://www.dom.state.ms.us/Provider/Provider_Manuals/Section_53_General_Medical_Policy.pdf.
Restrictions on Young Women's Access to Abortion
Mississippi law restricts young women's access to abortion.
Is the law enforceable? Yes. Courts have held that this law is constitutional under both the federal and state constitutions. Barnes v. Mississippi, 992 F.2d 1335 (5th Cir.), cert. denied, 510 U.S. 976 (1993); Pro-Choice Miss. v. Fordice, 716 So. 2d 645 (Miss. 1998).
Who is considered a minor? A young woman under the age of 18 who has never been married or freed from the care, custody, or control of her parents.
What is required - parental consent or parental notice? Consent.
Who must provide consent? Both parents.
Are there other trusted adults who may provide consent instead? No.
What is the process for obtaining consent? A young woman may not obtain an abortion unless the attending physician secures the written consent of both parents. However, if the young woman's parents are divorced, the consent of the custodial parent is sufficient, and if one parent is unavailable, the consent of the available parent is sufficient. In addition, if the young woman's "pregnancy was caused by sexual intercourse" with the young woman's natural father, adoptive father, or stepfather, then the consent of her mother is sufficient.
May the parental mandate be waived if a young woman is a victim of rape or incest? No.
May the parental mandate be waived if a young woman is a victim of child abuse? No.
May the parental mandate be waived if a young woman's health is threatened? Yes, but only if a specific kind of medical emergency exists. This medical emergency is defined as a condition of the pregnant woman that necessitates an immediate abortion to preserve her life or "for which a twenty-four-hour delay will create grave peril of immediate irreversible loss of a major bodily function."
May the parental mandate be waived under any other circumstances? Yes, the young woman may try to obtain permission from a judge.
If a young woman must obtain permission from a judge, what is the process? She must secure a court order stating either that, by clear and convincing evidence, she is mature and well informed enough to make her own decision or that an abortion is in her best interests.
Are there other significant requirements under the law? No.
Has a court considered the constitutionality of this law? Yes. Both a federal and a state court have upheld this law under the federal and state constitutions. Barnes v. Mississippi, 992 F.2d 1335 (5th Cir.), cert. denied, 510 U.S. 976 (1993); Pro-Choice Miss. v. Fordice, 716 So. 2d 645 (Miss. 1998).
Other Information About the Law: None.
Miss. Code Ann. §§ 41-41-31 (Enacted 1991), 51, -53, -57 (Enacted 1986), -55 (Enacted 1986; Last Amended 2007).
Targeted Regulation of Abortion Providers (TRAP)
Mississippi imposes a variety of burdensome requirements on abortion providers that are not imposed on other health care providers, including:
Restrictions on Where Abortions May Be Performed
Among the most common TRAP regulations are those restricting the performance of abortions to hospitals or other specialized facilities, which place medically unnecessary and costly requirements on doctors and can decrease the availability of abortion care for women. Mississippi has such regulations, including:
Providers of abortion services - including private physicians - must become licensed as an "abortion facility." Miss. Code Ann. § 41-75-1(e), (f) (Original Statute Enacted 1983; Relevant Provision Enacted 1991; Last Amended 2006), § 41-75-5 (Enacted 1983); Miss. Code R. §§ 12 000 034 (102.1), (102.3). The law exempts abortion facilities that perform fewer than ten abortions per month and fewer than 100 per year, but it does not exempt any provider that "holds itself out to the public" (which includes a telephone book listing) as an abortion provider. Miss. Code Ann. § 41-75-1(f) (Original Statute Enacted 1983; Relevant Provision Enacted 1991; Amended 1996); Miss. Code R. §§ 12 000 034 (102.1), (102.3).
Abortion facilities must comply with 35 pages of administrative, professional qualification, patient and employee testing, and physical plant requirements. Miss. Code Ann. § 41-75-29(2) (Enacted 1991); Miss. Code R. §12 000 034. The regulations are in addition to local zoning, building, and fire codes and applicable state and federal laws. Miss. Code R. §12 000 034 (403.2).
The state licensing agency has authority to make inspections and investigations of clinics as it "deems necessary." Miss. Code Ann. § 41-75-17 (Enacted 1983). The statute does not address patient privacy or record confidentiality.
Mississippi requires abortions after the first trimester be performed in an ambulatory surgical facility, a hospital, or in an abortion facility that has met the standards for an ambulatory surgical facility (a license as an ambulatory surgical facility is not required). Miss. Code Ann. § 41-75-1 (Original Statute Enacted 1983; Relevant Provision Enacted 1996; Amended 2006).
Mississippi also has an unconstitutional and unenforceable similar statute that requires that abortions after the first trimester be performed in a licensed hospital or ambulatory surgical facility. Miss. Code Ann. § 41-75-1(e) (Original Statute Enacted 1983; Relevant Provision Enacted 1996; Last Amended 2006). Under this law, abortion facilities were not eligible to become licensed as ambulatory facilities, and no existing ambulatory surgical facilities in Mississippi performed abortions. A court declared this law unconstitutional and permanently enjoined it. Jackson Women's Health Organization Inc. v. Amy, No. Civ.A. 3:04CV495LN (S.D. Miss. Jun. 14, 2005).
Restrictions on Who May Perform Abortions
Mississippi prohibits certain qualified health care professionals from performing abortions.
Only a practicing physician licensed by the state may perform an abortion. Miss. Code Ann. § 97-3-3 (Enacted 1952; Last Amended 1997).
A court held that this physician-only requirement is valid. Spears v. Circuit Court, Ninth Jud. Dist., 517 F.2d 360 (5th Cir. 1975).
PRO-CHOICE LAWS
Low-Income Women's Access to Family Planning
Mississippi provides increased access to reproductive health care services through a Section 1115 family planning waiver. The waiver allows the state to cover family planning services for women of childbearing age with incomes at or below 185% of the federal poverty level.
Beneficiaries of family planning coverage available through the waiver are not required to pay premiums or co-payments for covered services. Covered services include: contraceptive counseling and information; contraceptive supplies, devices, implants and prescriptions; office visits, consultation, examination and diagnosis; laboratory examinations and tests; voluntary sterilization; HIV blood screenings/STI testing in conjunction with a family planning encounter.
The waiver will expire on Oct. 31, 2011.
Miss. Family Planning Demonstration Fact Sheet, Ctrs. for Medicare and Medicaid Servs., Feb. 16, 2006; Medicaid Waivers and Demonstrations List, Details for Miss. Family Planning 1115, Ctrs. for Medicare and Medicaid Servs. at http://www.cms.hhs.gov/MedicaidStWaivProgDemoPGI/MWDL/itemdetail.asp?filterType=none&filterByDID=-99&sortByDID=2&sortOrder=ascending&itemID=CMS028661&intNumPerPage=2000 (last visited Dec. 5, 2008); NARAL Pro-Choice America Survey of State Medicaid Offices
