Lawsuit: Mississippi abortion ban may not yet be valid

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FILE – A bouquet of roses is left at the front gate of the Jackson Women’s Health Organization clinic in Jackson, Miss., July 8, 2022. A group of anti-abortion doctors in Mississippi, where state leaders led the charge to overturn Roe v Wade, the validity of the state law banning most abortions remains uncertain. In a lawsuit filed Monday, November 14, 2022 in Hinds County Chancery Court, the doctors argue that another legal victory is needed to enshrine the ban and protect them from punishment by medical institutions. (AP Photo/Rogelio V. Solis, file)

AP

A group of anti-abortion doctors in Mississippi, where state leaders led the charge to overturn Roe v. Wade, say the validity of the state law banning most abortions remains uncertain and further legal action is needed to clear it up and make them protect against possible punishment by medical institutions.

The Mississippi Justice Institute makes the claim in a lawsuit it filed Monday on behalf of the American Association of Pro-Life Obstetricians and Gynecologists against the Mississippi State Board of Medical Licensure and its executive director, Dr. Kenneth Cleveland.

The lawsuit argues that when the U.S. Supreme Court made its ruling in Dobbs v. Jackson Women’s Health Organization, the case that removed women’s constitutional protections from abortion, it failed to resolve a gray area in state law surrounding abortion rights. Lawyers for the doctors cited a 1998 Mississippi Supreme Court opinion called Pro-Choice Mississippi v. Fordice, which held that abortion is a right protected by the Mississippi Constitution.

“After Roe was overthrown, Mississippi enacted a ban on elective abortions, but the validity of that law is uncertain given the Mississippi Supreme Court’s ruling in Fordice,” reads a press release from the Mississippi Justice Institute. “As of today, elective abortions in Mississippi appear legally illegal while being constitutionally protected.”

Some Mississippi doctors who oppose abortion say the legal uncertainty has landed them in a “Catch-22.” They claim that medical institutions and certification bodies have issued guidelines suggesting that it is “unethical, and potentially punishable by the government, for physicians opposed to elective abortion to refuse or refer patients” to other physicians for legal elective abortions. The question of whether elective abortions are “legal” is unresolved and depends on whether the Mississippi Supreme Court’s opinion in Fordice is still valid, the doctors’ lawyers said.

Dr. Donna Harrison, the CEO of the American Association of Pro-Life Obstetricians and Gynecologists, said institutions such as the American College of Obstetrics and Gynecology and the American Medical Association “have continually attempted to violate the conscience rights of pro-life physicians. by forcing them to provide or refer patients for elective abortions.”

The organizations did not immediately respond to requests for comment. Cleveland, the head of the medical licensure board, was not immediately available.

“Instead of focusing on their mission to uphold medical standards, professional medical organizations have spent years trying to advocate for pro-abortion political positions,” Harrison told The Associated Press. “We hope to finally end those harassment tactics and medical professionals to care for and defend the lives of all people in Mississippi, regardless of age or location.”

In Dobbs v. Jackson Women’s Health Organization, the Mississippi Attorney General’s office argued that the state Supreme Court’s 1998 ruling that abortion is a constitutionally protected right rested on the U.S. Supreme Court decision Roe v. Wade which was destroyed on June 24.

In a last-ditch effort to keep the clinic open, attorneys for the Jackson Women’s Health Organization filed a petition to block the state’s trigger law from going into effect. They cited Fordice, arguing that the state constitution invokes a right to privacy that “includes an implied right to choose whether or not to have an abortion.” On July 5, a state court judge denied their request.

Two days later, Mississippi’s trigger law that banned most abortions went into effect. The clinic formally halted all of its litigation efforts a day after clinic owner Diane Derzis told the AP she sold the facility and had no intention of reopening it, even if a state court allowed her to.

Rob McDuff, an attorney for the Mississippi Center of Justice, represented the Jackson clinic in a number of cases, including the Dobbs case. He reached out for comment Monday shortly after the lawsuit was filed and said he was weighing legal options.

“We’re going to review this new lawsuit and consider whether it’s appropriate to intervene,” McDuff said.

The trigger law, passed in 2007, says that abortion is only legal if the pregnant woman’s life is in danger or if a pregnancy is caused by a rape that is reported to the police. It has no exception for pregnancies caused by incest. But its validity is uncertain because the Mississippi Supreme Court has not had an opportunity to overturn the 1998 Fordice decision, according to the Mississippi Justice Institute.

A spokesman for Mississippi Attorney General Lynn Fitch said the office is reviewing the lawsuit but would not comment on pending litigation.

Aaron Rice, executive director of the Mississippi Justice Institute, said this case is the latest leg of the anti-abortion movement’s legal march to secure the procedure’s ban. He expects the case to be decided by the Mississippi Supreme Court.

“We intend to get the job done and protect the right to life in the state that struck down Roe v. Wade,” Rice said.

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Michael Goldberg serves on the Corps for the Associated Press/Report for America Statehouse News Initiative. Report for America is a non-profit national service program that places journalists on local newsrooms to report on undercover issues. Follow him on Twitter at twitter.com/mikergoldberg.

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