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Dear Jack,

The Mississippi Justice Institute (MJI) filed a lawsuit on Monday that seeks to establish that the Mississippi Constitution does not protect the right to abortion. That question has come into sharp focus since July 7, 2022, when the state enacted a ban on elective abortions.

Here’s what you need to know about the suit, filed against state medical officials on behalf of the American Association of Pro-Life Physicians (AAPLOG), which is represented by MJI:

1. Whether Abortion is a Constitutional Right Has Not Been Fully Settled.

On June 24, 2022, the U.S. Supreme Court handed down its opinion in Dobbs v. Jackson Women’s Health Organization, overruling Roe v. Wade, which held that the U.S. Constitution protected a right to seek an abortion, and returned control of abortion policy from federal courts back to the states. But a similar opinion by the Mississippi Supreme Court, named Pro-Choice Mississippi v. Fordice, still holds that abortion is a right protected by the Mississippi Constitution.

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.

Because the Fordice opinion relied 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.

The lawsuit filed by MJI seeks to clarify this legal uncertainty and establish that abortion is not protected by the Mississippi Constitution and that the state’s elective abortion ban is valid.

2. The Validity of Mississippi’s Elective Abortion Ban is Uncertain.

Mississippi’s elective abortion ban conflicts with the Mississippi Supreme Court’s opinion in Fordice and has already been subject to a state constitutional challenge by an abortion clinic. After failing to secure the right to continue performing abortions while that lawsuit was pending, the abortion clinic abandoned its suit and moved to another state. However, until the Fordice opinion is overruled or recognized as no longer good law, Mississippi’s elective abortion ban will remain vulnerable to legal challenges.

3. Pro-Life Physicians Are Being Pressured to Violate their Conscience.

AAPLOG is the largest organization of pro-life obstetrician-gynecologists in the world. AAPLOG includes obstetrician-gynecologists and other physicians, with over 6,000 medical professionals nationwide. AAPLOG members oppose elective abortion and are committed to the care and well-being of their patients including both pregnant women and their unborn children.

AAPLOG filed suit to defend the conscience rights of its members in Mississippi. Many professional medical associations have sought for years to advocate for pro-abortion political positions, rather than focusing on their missions of upholding medical standards. Even worse, those medical organizations have continuously sought to violate the conscience rights of pro-life physicians by forcing them to provide or refer patients for elective abortions. Several of those organizations 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.

By establishing that Mississippi’s elective abortion ban is constitutional, AAPLOG hopes to finally put an end to those intimidation tactics and to defend the right to life in Mississippi.

4. If Successful, the Lawsuit Would End Court-Imposed, Elective Abortion Policy in Mississippi.

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.

For 49 years, abortion policy was removed from the democratic process and decided by federal courts. Now, the U.S. Supreme Court has returned control over abortion policy back to the states, where it rightly belongs. But Mississippi’s own courts have not yet had the chance to similarly relinquish control over abortion policy. If the lawsuit is successful, Mississippi’s courts will now recognize that abortion policy is for the people of Mississippi to decide, not the state’s judges.

Mississippi has led the charge to protect life, and with this lawsuit, Mississippi will continue to lead the way.

A copy of the lawsuit can be found here. ([link removed])
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In Liberty,
Aaron Rice
Mississippi Justice Institute Director

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