Abortion Providers: Restrictions
Mississippi imposes extra restrictions on abortion providers, despite the fact that all health-care providers already must comply with a variety of federal and state regulations governing health, safety, building and fire codes, and zoning requirements.
Restrictions on Where Abortion Services May Be Provided
Among the most common TRAP regulations are those restricting the provision of abortion services 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" and must comply with a uniquely imposed licensure scheme not required of other medical providers. Miss. Code Ann. § 41-75-1(e), (f) (Original Statute Enacted 1983; Relevant Provision Enacted 1991; Last Amended 2012), § 41-75-5 (Enacted 1983); Miss. Code R. §§ 15 301 044. The law exempts abortion facilities that provide fewer than 10 procedures 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. §§ 15 301 044.
Abortion facilities in Mississippi 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. §15 301 044. Miss. Code R. §15 301 044.
Mississippi law requires any physician providing abortion care to have both admitting and staff privileges at a local hospital. Miss. Code Ann. §41-75-1(f) (Enacted 2012). Nothing in the law requires hospitals to grant providers such privileges. The law also requires that all physicians associated with the abortion facility be board certified or eligible in obstetrics and gynecology. § 41-75-1 (Enacted 2012).
A court held that the admitting-privileges requirement was valid, but temporarily prohibited the state from enforcing the civil or criminal penalties while the abortion facility attempted to comply with the law. Jackson Women’s Health Organization, et al. v. Mary Currier, M.D., M.P.H., et al, No. 3:12cv436-DPJ-FKB, S.D. Miss. June 27, 2012). The state appealed, but a three-judge panel of the Fifth Circuit Court of Appeals upheld the temporary injunction. Jackson Women’s Health Organization et. al. v. Mary Currier, M.D., M.P.H., et al, No. 13-60599, July 29, 2014. The full Fifth Circuit denied a rehearing in the case, so the admitting-privileges requirement did not go into effect . Jackson Women’s Health Organization et. al. v. Mary Currier, M.D., M.P.H., et. al., No. 13-60599, Nov. 20, 2014. The state appealed to the U.S. Supreme Court, but after holding the case for over a year, the day following the Supreme Court’s decision in a similar TRAP case out of Texas (Whole Woman’s Health v. Hellerstedt), the court denied cert. In March 2017, the state was blocked from enforcing the admitting privileges requirement permanently, though summary judgment in the case has not yet been granted. Jackson Women’s Health Organization, et al. v. Mary Currier, M.D., M.P.H., et al, No. 3:12cv436-DPJ-FKB, (S.D. Miss. 2012), petition for cert. denied (S. Ct. 2016).
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 abortion services after the first trimester be provided 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). That facility cannot be located within 1,500 feet of a church, school, or kindergarten. 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 abortion services after the first trimester be provided 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 provided abortion care. 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 Provide Abortion Services
Mississippi prohibits certain qualified health-care professionals from providing abortion services.
Only a practicing physician licensed by the state may provide abortion care. 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).
Near-Total Abortion Ban
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, unless necessary to preserve the woman’s life or when the pregnancy is the result of rape, is guilty of a felony and will be imprisoned for one to 10 years, 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 Abortion 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 obtain or cause an abortion, unless necessary to preserve the woman’s life or when the pregnancy is the result of rape and that rape has been formally reported to law enforcement. A person who provides a prohibited abortion could be imprisoned for up to 10 years. Miss. Code Ann. § 41-41-45 (Enacted 2007).
Abortion Bans Throughout Pregnancy: Ban by Week
Mississippi outlaws abortion after 20 weeks without an adequate exception to protect women’s health or for cases in which the pregnancy was the result of rape or incest. Miss. Code Ann. §§ 41-41-133, -137, -141 (Enacted 2014).
The law subjects an abortion provider in violation of this ban to suspension, revocation, or restriction of their medical license, unless necessary to prevent a substantial permanent impairment of the life or physical health of the woman or in the case of a "severe fetal abnormality." Miss. Code Ann. §§ 41-41-133, -141, -143 (Enacted 2014).
Abortion Bans Throughout Pregnancy: Procedure Ban
Mississippi has an unconstitutional and unenforceable ban that outlaws abortion procedures as early as 12 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 had no 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 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. The law has an exception if an abortion 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 certain second-trimester abortion procedures and has no 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.
Abortion Bans Throughout Pregnancy: Procedure Ban
Mississippi outlaws the use of a D&E (dilation and evacuation) procedure unless it is necessary to save the woman’s life. The D&E procedure is the most commonly used method for second-trimester abortion. Its illegality would cause women to have to undergo more invasive and potentially more dangerous procedures. This law includes a narrow and inadequate exception to protect a woman’s health. Additionally, the law gives authority to bring a cause of action against a doctor to the state attorney general and any district or county attorney with jurisdiction. Further, this cause of action for civil damages may be brought on behalf of the father of the woman, the father of the pregnancy if he is married to the woman, and the woman’s parents or guardian if she is a minor. §§ 41-41-151 to -163 (Enacted 2016), H.B. 519, Reg. Sess. (Miss. 2016).
Abortion Bans Throughout Pregnancy: Ban by Week
Despite already having a ban on abortion after 20 weeks, Mississippi enacted a law also to ban abortion after 15 weeks – an attempt to go after the state’s only abortion providers. The law places the point of fetal viability at 15 weeks – well ahead of where medical providers place the viability line. The ban does not have an adequate exception to protect women’s health or for cases in which the pregnancy was the result of rape or incest. The law only includes a narrow exception for cases of fatal fetal anomaly.
The law subjects an abortion provider in violation of this ban to suspension, revocation, or restriction of their medical license, unless necessary to prevent a substantial permanent impairment of the life or physical health of the woman or in the case of a "severe fetal abnormality." H.B. 1510, 133rd Leg. Sess. (Miss. 2018).
The law has been permanently blocked in Jackson Women’s Health Org. v. Mary Currier (Nov. 20, 2018).
Abortion Bans Throughout Pregnancy: Ban by Week
In 2019, Mississippi passed an unconstitutional and unenforceable ban on abortion as early as 6 weeks.* The law requires the performance of an ultrasound and bans any abortion if a "heartbeat" is detected. An abortion performed in violation of this law would result in imprisonment for up to six (6) months, a fine of $1,000 or both. Miss. Code Ann. § 41-41-34.1 (2019)
*The law is currently enjoined while litigation on the law continues. Jackson Women’s Health Org. v. Dobbs, 379 F. Supp. 3d 549 (S.D. Miss. 2019).
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).
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).
Mississippi requires a woman seeking an abortion to wait at least 24 hours between the time she receives biased-counseling materials and when she can get the procedure. Miss. Code. Ann. § 41-41-33 (Enacted 1991, Last Amended 1996).
Insurance Coverage for Abortion
Prohibits Abortion Coverage in the Insurance Exchange
Does Mississippi expressly prohibit plans in its state exchange from covering abortion services?
Yes. Health-insurance policies offered in the state health-insurance exchange may not include abortion coverage, with exceptions only to save a woman’s life or if the pregnancy is the result of rape or incest. Nothing in the law prohibits the purchase of abortion coverage outside the exchange through an optional rider for which an additional premium is paid. However, insurers are not required to offer such riders and there is no evidence that such separate policies exist. (Even if they did exist, offering women the "option" to pay for separate abortion coverage is a false promise because no one plans for an unplanned pregnancy.) Miss. Code Ann. §§ 41-41-97, -99 (Enacted 2010).
Prohibits Abortion Coverage for Public Employees
Does Mississippi expressly prohibit insurance plans for public employees from covering abortion services?
Yes. No public funds may be used to pay for abortion coverage for state employees, with exceptions only to save a woman’s life, if the pregnancy is the result of rape or incest, or if the fetus has an anomaly incompatible with live birth. Nothing in the law prohibits the purchase of abortion coverage through an optional rider for which an additional premium is paid. However, insurers are not required to offer such riders and there is no evidence that such separate policies exist. (Even if they did exist, offering women the "option" to pay for separate abortion coverage is a false promise because no one plans for an unplanned pregnancy.) Miss. Code Ann. § 41-41-91 (Enacted 2002).
Abortion Coverage for Low-Income People
Restricts 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 https://www.medicaid.ms.gov/wp-content/uploads/2014/01/Admin-Code-Part-202.pdf.
Young People & 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 that necessitates an immediate abortion to preserve the woman’s 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).
Insurance Coverage & Contraception
No state measure.
Contraception Coverage for Low-Income People
Supports Low-Income Women’s Access to Contraception
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 and men ages 13 through 44 with incomes at or below 199 percent of the federal poverty level, and women losing Medicaid pregnancy coverage after 60 days postpartum. Additionally, enrollees must be (1) U.S. citizens or persons who meet the state’s defined immigration requirements and (2) Mississippi residents.
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 is set to expire on Dec. 31, 2027.
Mississippi Family Planning Waiver, Project No. 11-W-00157/7, at http://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Waivers/1115/downloads/ms/ms-family-planning-medicaid-expansion-project-ca.pdf.
No state measure.
Other Important Issues
No state measure.
Refusals & Guarantees
Refusals of Medical Care
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, institution, or payer 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.
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 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).
Counseling & Referral Bans
Counseling & Referral Ban
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 or services. Miss. Code Ann. §§ 93-21-301, -309 (Enacted 1989).
Public-school nurses are prohibited from counseling or referring any student to abortion services. Miss. Code Ann. § 41-79-5 (Enacted 1987; Last Amended 2000).