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The principal pre-Roe statute prohibited the performance of an abortion except when (1) the procedure was “necessary for the preservation of the mother’s life,” or (2) when the pregnancy was caused by rape.”1  Pursuant to Roe, the Mississippi Supreme Court held that § 97-3-3 is unconstitutional with respect to physicians, but constitutional with respect to non-physicians and upheld the conviction of a laywoman for performing an abortion.2  Although § 97-3-3 has not been repealed,3 it would not be enforceable, even if Roe were overruled, because of a Mississippi Supreme Court decision recognizing a right to an abortion on state constitutional grounds (an implied right of privacy).4  The court reviewed the “undue burden” standard of review the Supreme Court developed in Planned Parenthood v. Casey5 for evaluating the constitutionality of abortion regulations under the United States Constitution and chose to adopt that standard for measuring the validity of abortion regulations under the Mississippi Constitution.6  Under that standard, abortions could be performed for any reason before viability, and for virtually any reason after viability.


1 Miss. Code Ann. § 2223 (Supp. 1970), renumbered as § 97-3-3.  See Miss. Code Ann.§ 97-3-3 (1991).

2 See Spears v. State, 278 So.2d 443 (Miss. 1973).  In its original opinion, the Mississippi Supreme Court had rejected a challenge to the statute.  See Spears v. State, 257 So.2d 876 (Miss. 1972) (per curiam), cert. denied, 409 U.S. 1106 (1973).

3 See Miss. Code Ann. § 97-3-3 (1999).

4 See Pro-Choice Mississippi v. Fordice, 716 So.2d 645, 650-54 (Miss. 1998).

5 505 U.S. 833 (1992).

6 Pro-Choice Mississippi, supra, n. 4, 716 So.2d at 654-55.


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