Protecting Life:
Adherence to the Rule of Law and Judicial Restraint in Mississippi
Summary of the Mississippi Supreme Court Whitepaper
For a PDF copy of the full Mississippi whitepaper, please click here
“Mississippi conservatism” is exemplified by the decisions of the Mississippi Supreme Court, which have upheld a variety of significant structural restrictions on the performance of abortions, and by the recent passage of legislation protecting the lives of the unborn.
Life Issues
Abortion
In Pro-Choice Mississippi v Fordice, a group of abortion providers claimed several Mississippi statutes were unconstitutional. They challenged the 24-hour waiting period and state-mandated consultation before an abortion, the requirement that minors obtain parental consent prior to an abortion, and a statute requiring doctors complete an approved residency in obstetrics and gynecology before performing an abortion. The Mississippi Supreme Court found that the penumbras of the state constitution contained a right to privacy, including the right to have an abortion, and that the undue burden test, not compelling interest test, applied to judicial review of abortion. The Court also held that the three statutes were not unduly burdensome and thus constitutional. The only current member of the Court part of that decision, Justice Smith, wrote in a concurring opinion that the state constitution did not provide a separate right to abortion.
In R.B. ex rel. V.D. v State, R.B., a minor, challenged the parental notification laws because her parents had died and she lived with her grandmother, who was not her legal guardian. Though the grandmother consented to the abortion, the Court held that the minor plaintiff, R.B., was not mature and well-informed enough to make the abortion decision on her own, and that having an abortion would not be in R.B.’s best interest. The Court found that R.B. was not aware of alternative options to abortion or the medical risks associated with abortion. Writing separately, several judges expressed clear disapproval of abortion.
Protection of the Unborn from Criminal Violence
In 66 Federal Credit Union et al. v Tucker, the Mississippi Supreme Court addressed the issue of whether the wrongful death statute, which applied to “any person,” created a cause of action for the death of a non-viable fetus. The Court held that the statute provided a cause of action for fetuses who were “quick” (defined as “a child that has developed so that it moves within the mother’s womb”) but the case did not require it to determine whether the unborn were protected from the moment of conception.
Justice Cobb, in her concurrence, argued that “it would be wiser to choose a point in time which provides more certainty, and thus we should further extend the majority’s protection to include a pre-viable fetus from the point of conception.” She pointed out the inconsistency of allowing a tortfeaser to avoid liability for causing the death of an unborn child who was not yet quick when the tortfeaser would be liable for damages if the child had survived.
Assisted Suicide
Mississippi criminalizes assisted suicides by statute. The Mississippi Supreme Court has not heard a case challenging this statute.
Healthcare Rights of Conscience
The Mississippi Senate passed the “Mississippi Health Care Rights of Conscience Act” in 2004 that provides a health care provider, institution, or payer shall not be required to participate in health care service that violates his or her conscience. Another statute protects the rights of pharmacists to refuse to dispense emergency contraceptives or abortifacients. The Mississippi Supreme Court has yet to hear a case challenging this legislation.
Cloning and Destructive Embryo Research
Mississippi has not passed legislation regarding cloning. In 2006, a bill banning human cloning was proposed in the Mississippi House of Representatives but died in committee. Similarly, proposed legislation designed to prohibit destructive embryo research and the use of cloning technology died in both House and Senate committees.
Judicial Restraint
The majority of the current members of the court view their role as a judge to interpret, not create, law. In Dycus v Mississippi, a case involving sentencing a minor to the death penalty, Justice Randolph, in a concurrence joined by 5 other justices, acknowledged first that he was bound by the United States Supreme Court’s decision on the same issue, but also that “it is of no importance what my personal views on the death penalty, or any other subject may be; or whether I personally agree or disagree with an opinion of the Supreme Court; or for that matter, whether the opinion relies on sound logic and reasoning leading to a just result, vel non.”
He then criticized the USSC for applying “the evolving standards of decency” standard to interpreting the cruel and unusual punishment language of the Eighth Amendment, implying that the USSC was illegally amending the Constitution by judicial fiat. On the issue of separation of powers, Justice Randolph wrote that “the peoples’ will can best be determined by the nation’s legislatures, both federal and state, for social policy and in individual cases, by a jury of one’s peers. We would respectfully urge the Supreme Court to exercise judicial restraint, as the function of all courts is to adjudicate, not to legislate.”
The Court
The Mississippi Supreme Court consists of nine justices. The positions of the chief justice and presiding justice are determined based on seniority. The justices are elected to eight-year terms with staggered election years. Three justices come from each of the three geographical districts in Mississippi. If a justice cannot serve a full term, the governor will appoint a replacement for the remainder of the term. The Mississippi Supreme Court White Paper contains a table of biographical information for each current member of the Court.
For a PDF copy of the full Mississippi whitepaper, please click here