RICE & TAGGART/The new fight to protect the right to life in Mississippi

Did you know that in Mississippi – the state that led the charge to overturn Roe v. Wade – elective abortions are both illegal and a constitutional right at the same time?

If that sounds confusing to you, it should. That’s why the Mississippi Justice Institute recently filed a lawsuit on behalf of pro-life physicians seeking to end court-imposed, elective abortion policy in our state.

So, how did we get here?

The people of Mississippi have long sought to protect the lives of unborn children. However, in 1973, those efforts came to a near halt following the U.S. Supreme Court’s infamous opinion in Roe v. Wade, which held that abortion was a right protected by the U.S. Constitution. 

In 1986, several obstetrician-gynecologists and abortion clinics filed a lawsuit claiming that a Mississippi parental consent abortion statute violated the federal constitutional rights of minors to seek an abortion. That lawsuit ultimately failed, with the federal courts finding in 1992 that Mississippi’s parental consent law did not violate the federal standard for abortion regulations announced by the U.S. Supreme Court in Planned Parenthood of Southeastern Pennsylvania v. Casey.

After that lawsuit failed, Pro-Choice Mississippi, an abortion advocacy group, and some of the same obstetrician-gynecologists and abortion clinics filed a new lawsuit in state court in 1994. This time, they did not argue that the parental consent law violated the federal constitutional right to seek an abortion. Rather, they argued that the Mississippi Constitution guaranteed a right to seek an abortion and that Mississippi’s parental consent law violated this state constitutional right.

Every state has its own constitution. While state constitutions cannot restrict rights secured by the federal Constitution, they can offer greater protection of rights than that afforded under the U.S. Constitution.  So abortion advocates sought protection under the Mississippi Constitution for conduct that the federal courts had determined was not protected by the U.S. Constitution. 

In 1998, the Mississippi Supreme Court ruled on the state court lawsuit in Pro-Choice Mississippi v. Fordice. Relying heavily on the U.S. Supreme Court’s holdings and reasoning in Roe and Casey, the Mississippi Supreme Court held that the Mississippi Constitution – like the U.S. Constitution – did protect a right to seek an abortion.

As we all know, the U.S. Supreme Court recently handed down the Dobbs opinion which overruled Roe and Casey and returned control over abortion policy from the federal courts back to the states, where it rightly belongs. After the Dobbs decision, Mississippi enacted a law prohibiting abortion except in cases where necessary for the preservation of the mother’s life or where the pregnancy was caused by rape.

But what about the Fordice opinion? Because it relied so heavily on Roe and Casey – cases which the U.S. Supreme Court has now said were “egregiously wrong” – the rationale for the supposed state constitutional right to abortion appears now to be invalid. But the Mississippi Supreme Court has not yet had the opportunity to overrule its opinion in Fordice. So, as of today, elective abortions in Mississippi seem to be both statutorily illegal and constitutionally protected at the same time. 

To make things worse, this legal uncertainty has placed physicians in Mississippi in an impossible “Catch-22.” Several medical societies and board certification authorities have issued guidelines suggesting that it is unethical, and potentially punishable by the government, for physicians who oppose elective abortion to refuse to provide or refer patients to other providers for lawful, elective abortions. But are elective abortions “lawful” in Mississippi? That depends on whether you are looking at Mississippi’s elective abortion ban or the Mississippi Supreme Court’s opinion in Fordice.

Due to this legal uncertainty, physicians in Mississippi necessarily have to guess as to the legality of their actions involving elective abortion, and no matter which guess they make, they could be punished for guessing wrong.  That’s why the American Association of Pro-Life Obstetricians and Gynecologists partnered with the Mississippi Justice Institute to file a lawsuit seeking to clarify that abortion is not protected by the Mississippi Constitution.

In Dobbs, Mississippi secured a major victory for human rights and the rule of law. Now it’s time to finish the job and put an end to judicially-imposed, elective abortion policy in the state that took down Roe.

Aaron Rice is the director of the Mississippi Justice Institute, a non-profit, constitutional litigation center and the legal arm of the Mississippi Center for Public Policy.

Andy Taggart is a founding partner of Taggart, Rimes & Wiggins, PLLC, and a volunteer attorney with the Mississippi Justice Institute.