Pro-Choice Mississippi v. Fordice

• Decision Date: 13 August 1998
• Docket Number: No. 95-CA-00960-SCT,PRO-CHOICE,95-CA-00960-SCT
• Citation: 716 So.2d 645
• Parties: MISSISSIPPI, on Behalf of Itself and Its Members, Joseph Booker, M.D., Tom Tvedten, M.D. and New Woman Medical Center v. Kirk FORDICE, Governor of the State of Mississippi and His Employees, Agents and Successors; Mike Moore, Attorney General of the State of Mississippi and His Employees, Agents and Successors; and Mississippi State Department of Health.
• Court: Mississippi Supreme Court

Page 645

716 So.2d 645

PRO-CHOICE MISSISSIPPI, on Behalf of Itself and Its Members Joseph Booker, M.D., Tom Tvedten, M.D. and New Woman Medical Center v. Kirk FORDICE, Governor of the State of Mississippi and His Employees, Agents and Successors; Mike Moore, Attorney General of the State of Mississippi and His Employees Agents and Successors; and Mississippi State Department of Health.

No. 95-CA-00960-SCT.

Supreme Court of Mississippi.

Aug. 13, 1998.

Catherine Albisa, Katherine Kolbert, New York City, Robert B. McDuff, Jackson, for Appellants.

Michael C. Moore, Attorney General, T. Hunt Cole, Special Asst. Atty. Gen., Michael B. Wallace, Phelps, Dunbar, Robert T. Higginbotham, Jr., Jackson, for Appellee.

Paul B. Linton, Northbrook, IL, Paul W. Crutcher, Oxford, for amicus curiae.

En Banc.

SULLIVAN, Presiding Justice, for the Court:

¶1 The original opinions in this case are withdrawn and these opinions are substituted therefor.

PART ONE

BACKGROUND--FEDERAL LITIGATION

¶2 On June 27, 1986, Helen Barnes, M.D., Henry Thomas Gunter, M.D., Mississippi Women's Medical Clinic, New Woman Medical Center (Jackson) and New Woman Medical Center (Bay St. Louis) challenged the facial constitutionality of the parental consent abortion statutes, Miss.Code Ann. §§ 41-41-51 through 41-41-63. They sued Bill Allain, then Governor of Mississippi; Edwin Pittman, then Attorney General of Mississippi; the State Board of Medical Licensure, including its members; and the Justices of the Mississippi Supreme Court. The challenge was tried before Judge Henry T. Wingate of the United States Federal District Court for ¶3 Citing Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979), and Hodgson v. Minnesota, 497 U.S. 417, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990), the Fifth Circuit found that a two-parent consent statute with an adequate judicial bypass met federal constitutional muster. Relying on the plurality opinion in Bellotti, the Court concluded that "if the statute had contained an adequate judicial bypass the four members of the plurality stood ready to uphold it. A fifth, Justice White, was prepared to uphold the statute in Bellotti even without a judicial bypass." Barnes II, 992 F.2d at 1338. In Hodgson, five Justices "viewed Bellotti as settling the question in favor of the constitutionality of a two-parent consent/judicial bypass statute." Id. at 1339. The Barnes II Court concluded that Mississippi's two-parent consent law did not place an "undue burden" on a minor's right to seek an abortion. Id. at 1341.

the Southern District of Mississippi. Judge Wingate granted a preliminary injunction enjoining enforcement of the laws until the Mississippi Supreme Court could promulgate rules on parental consent waiver proceedings. The district court also stayed the proceedings for four years, awaiting the outcome of various United States Supreme Court rulings on abortion. Finally, in March 1992, Judge Wingate held that M.R.A.P. 48 (governing appeals from consent waiver proceedings) was unduly restrictive and impaired a minor's access to an abortion. Judge Wingate denied the State's motion to lift the preliminary injunction on enforcement of the challenged statutes. The State appealed to the Fifth Circuit Court of Appeals, who found that the abortion statutes were constitutional in Barnes v. Mississippi, 992 F.2d 1335 (5th Cir.1993), cert. denied, 510 U.S. 976, 114 S.Ct. 468, 126 L.Ed.2d 419 (1993) (Barnes II ).

¶4 The plaintiffs claimed that, even though the statutory judicial bypass might meet constitutional standards, Uniform Chancery Court Rule 10.01, which implements the statute, does not. The Court felt that the contention was hyper-technical and that U.C.C.R. 10.01 was not violative of the Constitution. Barnes II, 992 F.2d at 1342.

¶5 On May 21, 1991, Mississippi Women's Medical Clinic and New Woman Medical Center, joined by Joseph Booker, M.D., Helen Barnes, M.D., and Joseph Mitchell, M.D., filed suit against Attorney General Mike Moore in the United States District for the Southern District of Mississippi to enjoin enforcement of the Informed Consent Act, alleging facial violations of both the United States and Mississippi Constitutions. The district court, on August 30, two days before the act was to become effective, granted an injunction suspending the effective date of enforcement. Barnes v. Moore, 970 F.2d 12, 13 (5th Cir.1992) (Barnes I ).

¶6 While the appeal was pending, the United States Supreme Court handed down Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). The Fifth Circuit determined that Mississippi's laws were similar to the Pennsylvania laws which the United States Supreme Court ruled facially constitutional in Casey. Barnes I, 970 F.2d at 14-15. Applying the undue burden standard announced in Casey, the Fifth Circuit determined that the differences between the Mississippi and Pennsylvania laws were not sufficient to render Mississippi's laws facially unconstitutional. Id. at 15.

STATEMENT OF THE CASE AND FACTS

¶7 After the facial constitutional challenges in federal court failed, a new group of plaintiffs (hereinafter Plaintiffs) filed a complaint on February 17, 1994, in the Hinds County Chancery Court, contending that certain Mississippi abortion laws violate the Mississippi Constitution. The original plaintiffs in this proceeding were Pro-Choice Mississippi, Joseph Booker, M.D., Tom Tvedten, M.D., Mississippi Women's Medical Clinic, and New Woman Medical Center. Mississippi Women's Medical Clinic was voluntarily dismissed from the proceedings.

¶8 Pro-Choice is a coalition of individuals and organizations committed to the preservation of reproductive rights for all Mississippians. Its member organizations include Planned Parenthood of Mississippi, League of Women Voters of Mississippi, the Mississippi ¶9 Joseph Booker, M.D., is a physician licensed to practice medicine in Mississippi and California, specializing in gynecology. He completed a residency in obstetrics/gynecology at Kaiser Foundation Hospital/Martin Luther King Hospital in Los Angeles, California in 1978, and is currently a member of the Mississippi State Medical Association, the Coast County Medical Association, and the American Medical Association. As the medical director of Gulf Coast Women's Clinic in Gulfport, Dr. Booker asserts his own interests and the interests of his patients, whom he alleges are irreparably harmed by the challenged statutory scheme.

Chapter of the National Organization for Women, and the American Civil Liberties Union of Mississippi.

¶10 Tom Tvedten, M.D., is a physician licensed to practice medicine in Arkansas and Mississippi, and temporarily licensed to practice in Alaska. He never completed an American Medical Association-approved residency in obstetrics/gynecology. Dr. Tvedten would like to provide abortion services at the New Woman Medical Center in Jackson but for the challenged licensing restriction.

¶11 New Woman Medical Center in Jackson, Mississippi provides a wide range of health care, including abortions. New Woman has faced great difficulties in recruiting physicians to perform abortions. New Woman asserts its own interests and the interests of its patients.

¶12 The defendants are Kirk Fordice, Governor of Mississippi, Mike Moore, Attorney General of Mississippi, and the Mississippi State Department of Health. On May 15, 1996, an amicus curiae brief was filed supporting the State's position. The amici include Ronnie Musgrove, Lieutenant Governor of Mississippi, Eric Clark, Mississippi Secretary of State, and various members of the Mississippi Legislature.

¶13 Specifically, Plaintiffs argue that the following are unconstitutional: Miss.Code Ann. § 41-41-31 et seq. (1993) (requiring a twenty-four hour waiting period after state-mandated consultation on information pertaining to abortion and pregnancy before a woman may have an abortion); Miss.Code Ann. §§ 41-41-51 through 41-41-63 (1993), Miss. R.App. P. 48, and U.C.C.R. 10.01 (requiring minors, with a limited exception, to obtain consent of both parents prior to having an abortion); and Rules and Regulations for the Operation of Ambulatory Surgical Facilities and Abortion Facilities § 102.19 (requiring a physician to have completed an American Medical Association approved residency in obstetrics and gynecology before performing abortions at a licensed abortion clinic).

¶14 Plaintiffs sought both declaratory and permanent injunctive relief on the grounds that each of the restrictions violates rights guaranteed by Article III, §§ 6, 14, and 32 of the Mississippi Constitution of 1890, including the right to privacy, the right of bodily integrity, the right to make medical decisions free from governmental interference, freedom of conscience, the right to due process of law, and the right to safety. Additionally, Plaintiffs allege that the two-parent consent law and the mandatory delay/State-mandated information law violate the right to free speech as guaranteed by Article III, § 13, and the guarantee against vague punitive laws provided for in Article III, § 14. Plaintiffs also assert that the licensing restriction violates the state constitutional due process guarantee to equal protection of the law and against arbitrary and irrational laws provided for in Article III, §§ 32 and 14 of the Mississippi Constitution.

¶15 Both parties filed motions for summary judgment, and the State asserted the affirmative defenses of lack of standing, lack of jurisdiction, improper joinder, and res judicata. On August 30, 1995, Chancellor Patricia Wise granted the State's motion for summary judgment, finding that the Mississippi Constitution contains a specific right to abortion but that the statutes were constitutional.

STATEMENT OF THE LAW

Standard of Review

¶16 This Court will utilize the following standard of review:

The standard for reviewing the granting or the...