A conservative litigation group filed a lawsuit this week to overturn Pro-Choice Mississippi v. Fordice, with the goal of ending what may be a legal loophole protecting abortion rights in Mississippi. A branch of the Mississippi Center for Public Policy, a right-wing think-tank, partnered with the American Association of Pro-Life Obstetricians and Gynecologists, or AAPLOG, to challenge the law on the basis of the U.S. Supreme Court’s overturning of Roe v. Wade and Planned Parenthood v. Casey.
“After Roe was overturned,” a statement from the Mississippi Justice Institute says, “Mississippi enacted a ban on elective abortions, but the validity of that law is uncertain, given the Mississippi Supreme Court’s opinion in Fordice. As of today, elective abortions in Mississippi appear to be both statutorily illegal and constitutionally protected at the same time.”
‘Physicians Must Guess’
Previously, the Mississippi Center for Justice intended to launch a legal challenge to Mississippi’s abortion ban with Pro-Choice Mississippi v. Fordice as its centerpiece. “In Fordice, the Mississippi Supreme Court held that ‘abortion is protected within the penumbras of the right to privacy’ under the Mississippi Constitution. Id. at 666,” a lawsuit filed shortly after the Dobbs decision stated.
But the Jackson Women’s Health Organization—the now-closed abortion provider with standing to challenge the abortion-ban trigger law—shut down in July, ending that attempt to force Mississippi’s statutory law into alignment. Now, the MJI’s lawsuit seeks the exact opposite outcome.
The new lawsuit asserts that “physicians must necessarily guess as to the legality of their actions regarding abortion.” If the law favors the statutory interpretation, the lawsuit argues, a Mississippi physician who refers a patient out of state for an abortion “could face criminal prosecution as an accessory to a felony.” If the law favors a 1998 court ruling, it continues, a Mississippi physician who declines to refer a patient out of state could “be disciplined by the Mississippi State Board of Medical Licensure.”
Aaron Rice, director of the Mississippi Justice Institute, told the Mississippi Free Press in an interview that “several professional medical societies and board certification organizations have issued ethical guidelines that suggest that it is unethical for physicians to refuse to provide or refer patients for lawful abortions and, and that the government can, in fact, punished them for refusing.”
The American College of OBGYNs reaffirmed an opinion in 2016 that “Physicians and other health-care professionals have the duty to refer patients in a timely manner to other providers if they do not feel that they can in conscience provide the standard reproductive services that their patients request,” and that “[i]n an emergency in which referral is not possible or might negatively affect a patient’s physical or mental health, providers have an obligation to provide medically indicated and requested care regardless of the provider’s personal moral objections.”
Criminalization of Pregnancy Outcomes?
Laurie Bertram Roberts, co-founder of the Mississippi Reproductive Freedom Fund, worries that attempts to clamp down on state precedent may affect pregnant individuals in numerous ways. “I don’t know what kind of impact this could have on criminalization of pregnancy outcomes, on people who self-manage abortions at home,” Roberts said. “If you have a constitutional right under our state constitution, then it’s rather hard for someone to be prosecuted, right?”
Roberts highlighted the case of Latice Fisher as an example of attempts to prosecute mothers for pregnancy outcomes even in a pre-Dobbs Mississippi. “It’s not just if you self-manage your abortion,” Roberts said.
This week’s lawsuit contains a relatively simple challenge to the ruling from Pro-Choice Mississippi v. Fordice. The lawsuit argues that it “relied heavily upon the U.S. Supreme Court’s holdings and reasoning in Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey.” Now, that precedent is gone.
Earlier this year, the Mississippi Center for Justice lawsuit made the opposite appeal. “Given that the decision was issued by the Mississippi Supreme Court based on the Mississippi Constitution, it is not dependent upon the U.S. Supreme Court’s interpretation of the U.S. Constitution,” the earlier, pro-abortion rights lawsuit asserted. “Thus, the precedent established in Fordice remains good law.”
Joining AAPLOG and the Mississippi Justice Institute is Andy Taggart, one of the founding partners of law firm Taggart, Rimes & Wiggins. “It is a privilege to represent AAPLOG as they seek to protect the conscience rights of their members and the lives of the unborn,” Taggart wrote in a statement. “Mississippi has led the charge to protect life, and with this case, Mississippi will continue to lead the way.”
Reached for comment, Rob McDuff, director of the Mississippi Center for Justice George Riley Impact Litigation Initiative, told the Mississippi Free Press in a statement that the organization was considering their response to the new lawsuit. “We are going to review this new lawsuit and consider whether it is appropriate for us to seek to intervene,” McDuff wrote.
Editor’s note: Rob McDuff and the Mississippi Center for Justice have represented the Mississippi Free Press in an unrelated public-meetings challenge.
