RICE: The New Fight to Protect the Right to Life in Mississippi

Submitted by Aaron Rice

“It’s time to complete the job and put an finish to judicially-imposed, elective abortion coverage within the state that took down Roe,” writes MJI’s Rice.

Do you know that in Mississippi – the state that led the cost to overturn Roe v. Wade – elective abortions are each unlawful and a constitutional proper on the identical time?

If that sounds complicated to you, it ought to. That’s why the Mississippi Justice Institute just lately filed a lawsuit on behalf of pro-life physicians looking for to finish court-imposed, elective abortion coverage in our state.

So, how did we get right here?

The individuals of Mississippi have lengthy sought to guard the lives of unborn kids. Nevertheless, in 1973, these efforts got here to a close to halt following the U.S. Supreme Court docket’s notorious opinion in Roe v. Wade, which held that abortion was a proper protected by the U.S. Structure.

In 1986, a number of obstetrician-gynecologists and abortion clinics filed a lawsuit claiming {that a} Mississippi parental consent abortion statute violated the federal constitutional rights of minors to hunt an abortion. That lawsuit finally failed, with the federal courts discovering in 1992 that Mississippi’s parental consent legislation didn’t violate the federal commonplace for abortion laws introduced by the U.S. Supreme Court docket in Deliberate Parenthood of Southeastern Pennsylvania v. Casey.

After that lawsuit failed, Professional-Selection Mississippi, an abortion advocacy group, and a few of the identical obstetrician-gynecologists and abortion clinics filed a brand new lawsuit in state courtroom in 1994. This time, they didn’t argue that the parental consent legislation violated the federal constitutional proper to hunt an abortion. Somewhat, they argued that the Mississippi Structure assured a proper to hunt an abortion and that Mississippi’s parental consent legislation violated this state constitutional proper.

Each state has its personal structure. Whereas state constitutions can’t limit rights secured by the federal Structure, they will supply higher safety of rights than that afforded below the U.S. Structure. So abortion advocates sought safety below the Mississippi Structure for conduct that the federal courts had decided was not protected by the U.S. Structure.

In 1998, the Mississippi Supreme Court docket dominated on the state courtroom lawsuit in Professional-Selection Mississippi v. Fordice. Relying closely on the U.S. Supreme Court docket’s holdings and reasoning in Roe and Casey, the Mississippi Supreme Court docket held that the Mississippi Structure – just like the U.S. Structure – did shield a proper to hunt an abortion.

As everyone knows, the U.S. Supreme Court docket just lately handed down the Dobbs opinion which overruled Roe and Casey and returned management over abortion coverage from the federal courts again to the states, the place it rightly belongs. After the Dobbs choice, Mississippi enacted a legislation prohibiting abortion besides in circumstances the place vital for the preservation of the mom’s life or the place the being pregnant was brought on by rape.

However what in regards to the Fordice opinion? As a result of it relied so closely on Roe and Casey – circumstances which the U.S. Supreme Court docket has now stated have been “egregiously fallacious” – the rationale for the supposed state constitutional proper to abortion seems now to be invalid. However the Mississippi Supreme Court docket has not but had the chance to overrule its opinion in Fordice. So, as of in the present day, elective abortions in Mississippi appear to be each statutorily unlawful and constitutionally protected on the identical time.

To make issues worse, this authorized uncertainty has positioned physicians in Mississippi in an not possible “Catch-22.” A number of medical societies and board certification authorities have issued tips suggesting that it’s unethical, and doubtlessly punishable by the federal government, for physicians who oppose elective abortion to refuse to offer or refer sufferers to different suppliers for lawful, elective abortions. However are elective abortions “lawful” in Mississippi? That will depend on whether or not you’re looking at Mississippi’s elective abortion ban or the Mississippi Supreme Court docket’s opinion in Fordice.

As a result of this authorized uncertainty, physicians in Mississippi essentially should guess as to the legality of their actions involving elective abortion, and irrespective of which guess they make, they could possibly be punished for guessing fallacious. That’s why the American Affiliation of Professional-Life Obstetricians and Gynecologists partnered with the Mississippi Justice Institute to file a lawsuit looking for to make clear that abortion just isn’t protected by the Mississippi Structure.

In Dobbs, Mississippi secured a serious victory for human rights and the rule of legislation. Now it’s time to complete the job and put an finish to judicially-imposed, elective abortion coverage within the state that took down Roe.

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Submitted by Aaron Rice. He’s the director of the Mississippi Justice Institute, a non-profit, constitutional litigation heart and the authorized arm of the Mississippi Heart for Public Coverage. Andy Taggart is a founding associate of Taggart, Rimes & Wiggins, PLLC, and a volunteer legal professional with the Mississippi Justice Institute.