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.” 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. Although § 97-3-3
has not been repealed, it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). The court
reviewed the “undue burden” standard of review the Supreme
Court developed in Planned Parenthood v. Casey 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. Under
that standard, abortions could be performed for any reason
before viability, and for virtually any reason after viability.
Miss. Code Ann. § 2223 (Supp. 1970),
renumbered as § 97-3-3. See Miss.
Code Ann.§ 97-3-3 (1991).
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).
Code Ann. § 97-3-3 (1999).
Pro-Choice Mississippi v. Fordice, 716 So.2d 645,
650-54 (Miss. 1998).
Mississippi, supra, n. 4, 716 So.2d at 654-55.