JACKSON, Miss. (Jan. 5, 2018) – Two bills introduced in the Mississippi House would outlaw abortion in the state and impose criminal penalties on physicians who illegally perform them, nullifying the Supreme Court decision in Roe v. Wade.

Rep. Dan Eubanks (R-Walls) introduced House Bill 45 (HB45) on Jan. 2. Under the proposed law, “anyone who purposefully, knowingly or recklessly performs or attempts to perform or induce an abortion shall be guilty of murder and punished as provided by law for such crime.” The legislation would make it unlawful for any physician to perform an abortion or to perform an abortion that results in the delivery of a living child and to intentionally allow or cause the child to die. Doctors who violate the law could be charged with a felony and subject to 1 to 10 years in prison and a fine of up to $50,000.

A second bill (HB226) introduced by Rep. Robert Foster (R-DeSoto) would prohibit abortions if the fetus has a detectable heartbeat. HB226 does not include jail time, but doctors found guilty of violating the law would be fined up to $25,000. The bill has an exception for the life of the mother.

Passage of either bill would undoubtedly set up a confrontation between the state of Mississippi and the federal government. The Supreme Court has held that states cannot regulate abortions before a fetus is “viable” – generally around 22 weeks.

The opinion of Supreme Court judges notwithstanding, the federal government lacks any constitutional authority to regulate abortions. This clearly falls within the objects James Madison said would remain with the state governments – “objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people.”

But in Roe v. Wade, the SCOTUS created a constitutional “right to privacy” out of thin air and enforced it on state governments through the “due process” clause of the 14th Amendment. Justice Byron White captured the absurdity of the ruling in a blistering dissent.

“I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes.”

From a constitutional perspective based on the original meaning of the Constitution and the 14th Amendment, Both HB45 and HB226 rest on solid constitutional ground. How it would play out in practice, should it pass into law, remains to be seen.


Both HB45 and HB226 were referred to House Judiciary B Committee where it will need to pass by a majority vote before moving forward in the legislative process.

Mike Maharrey

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