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 the 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 guesses 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 the 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.

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.

The Mississippi Justice Institute is a non-profit, constitutional litigation center and the legal arm of the Mississippi Center for Public Policy. It defends the personal, economic, and religious liberty of Mississippians in court to ensure that all forms of government are limited to their essential responsibilities as provided by the Constitution and to foster freedom and prosperity in the state.

(Jackson, MS): The Mississippi Justice Institute's Director, Aaron Rice, receives an award from the Foundation for Holistic Health Education.

Mississippi Justice Institute Director Aaron Rice received an award from the Foundation for Holistic Health Education for his support and dedication to holistic health and its practitioners. 

Rice received the award in recognition of his role in bringing a lawsuit that successfully ended Mississippi's practice of requiring weight-loss coaches to have a dietician's license or face jail and fines - even if they did not treat medical conditions or claim to be a licensed dieticians.  

"I am honored to receive this recognition on behalf of the Mississippi Center for Public Policy and its legal arm, the Mississippi Justice Institute," Rice said. "We will continue standing up for the right of all Mississippians to earn an honest living in our state." 

After Rice won the case against the bureaucratic law, the state amended its regulations to allow unlicensed people to offer non-medical weight-loss advice as long as they do not claim to be a dietitian, allowing more Mississippians the opportunity to make a living and provide for their families.

"Aaron is a tireless advocate for working Mississippians, and we are proud to see him receive this award," said Douglas Carswell, the CEO & President of MCPP. "Because of Aaron's efforts, regular Mississippians have never felt more confident that their constitutional rights will be protected and, if needed, zealously defended."

The Mississippi Justice Institute is a non-profit, constitutional litigation center and the legal arm of the Mississippi Center for Public Policy. It defends the personal, economic and religious liberty of Mississippians in court to ensure that all forms of government are limited to their essential responsibilities as provided by the Constitution and to foster freedom and prosperity in the state.  

For the first time in twenty years, Americans will commemorate Memorial Day this year in peacetime, and in the shadow of the two longest wars in U.S. history. As we honor and remember those from all of our wars who did not make it home, we should also view those veterans who did in an accurate light.

For many veterans, Memorial Day is a time of mourning that brings difficult memories of losing friends. It can bring feelings of guilt for surviving when those friends did not. It can even bring reminders of other painful events experienced on the battlefield.

While they have endured physical and emotional suffering, we should recognize our veterans not just for the burdens of the fight, but for having emerged from it even stronger. They are warriors, not hapless victims.

After I lost friends in Iraq and was injured there, people often told me things like: “If it was going to happen, it couldn’t have happened to a better person. You had the strength to overcome it.” This appears to be the conventional wisdom about trauma: that it is almost always harmful to a person and usually produces lifelong misery and maladjustment, but that a brave few are naturally endowed with enough resilience to face life-altering adversity and overcome it. Hollywood, politicians, and the media fuel this stereotype, often portraying veterans as fragile, psychologically damaged victims.

But I see it differently. Retired four-star general and former secretary of defense James Mattis does too. “There is one misperception of our veterans and that is they are somehow damaged goods,” said General Mattis, speaking at the Marine Memorial Foundation in 2014. "I don't buy it."

To be clear, many veterans have indeed been damaged by war. Some are even at risk of homelessness or suicide. They deserve the support and care of a grateful nation. But the veteran-as-victim trope portrays veterans as fragile and deserving of pity, which is not how veterans feel – even those struggling with the physical and mental wounds of war.

Despite the indisputable grief and personal loss experienced by many veterans, most return home and build a new life – a life with a noble purpose that would honor the sacrifices of their fellow service members who did not get that chance. Their experience points to a different conclusion: that human beings are naturally resilient.

Most of us grow from losses and find meaning in them. Everyone talks about post-traumatic stress, which of course is very real and difficult. But, as General Mattis reminded us, “there is also something called post-traumatic growth, where you come out of a situation like [combat] and you actually feel kinder toward your fellow man and fellow woman; that you are actually a better husband, father; you actually have a closer relationship with your God.” While stress after combat or any traumatic event is inevitable, it can be the precursor to growth. Overall, “you come back from war stronger and more sure of who you are,” Mattis said.

Many of us fear we could never overcome tragedy because we would never choose it willingly. But when the illusion of choice is taken away, we find that we can not only survive it but even grow from it because that is our only path forward. And human beings are wired to survive and move forward.

General Mattis has a theory about why so many want to paint veterans as victims. “While victimhood in America is exalted, I don't think our veterans should join those ranks,” he said. Given the coveted status

of victimhood today, it is no surprise that well-meaning people would seek to bestow that special status upon veterans. But our veterans want no pity. And the truth is that it would only hold them back. They already have the growth and meaning that comes from serving a noble cause and overcoming real tragedy. They know that seeking pity, from themselves or others, would only hinder their ability to succeed in their new life missions.

This Op/Ed was published in the Clarion-Ledger on May 29.

Aaron Rice is an Iraq War veteran and a Purple Heart recipient. He is also the director of the Mississippi Justice Institute, a nonprofit, constitutional litigation center and the legal arm of the Mississippi Center for Public Policy.

FOR IMMEDIATE RELEASE

Today, the United States Supreme Court met for a special session to hear oral arguments concerning the Biden Administration’s vaccine mandate for private employers, which has been challenged in court by multiple states and private employers, including Gulf Coast Restaurant Group, which is represented by the Mississippi Justice Institute (MJI).

The hearing concerned emergency motions seeking a stay of the vaccine mandate while litigation continues. The mandate is scheduled to take effect on January 10, 2022. 

The mandate requires companies with over 100 employees to force their employees to be vaccinated, or be subject to weekly testing (at the employee’s expense) and constant mask-wearing – on pain of losing their job. Companies can face fines of up to $14,000 per violation for failing to enforce the mandate.

The mandate was initially halted by the 5th Circuit Court of Appeals, which issued a stay against enforcement of the mandate while litigation challenging its legality continued.  However, all lawsuits challenging the mandate were later consolidated before the 6th Circuit Court of Appeals, where a three-judge panel issued an opinion revoking the temporary stay. The states and private employers challenging the mandate then sought emergency relief from the U.S. Supreme Court, asking the Court to issue a new stay before the mandate goes into effect on January 10.

"We are very grateful that the U.S. Supreme court has taken the extraordinary step of scheduling a special session to hear these arguments,” said MJI Director Aaron Rice. “We are confident that the U.S. Supreme Court will agree with us that the mandate is unconstitutional and unlawful and will halt the mandate before it can inflict untold damage on private employers and on our economy."

For media inquiries, please reach out to Stone Clanton, [email protected].

In a 2-1 ruling, a panel of the U.S. Appeals Court for the Sixth Circuit ruled that the Biden administration could enforce the policy using the Labor Department’s Occupational Safety and Health Administration (OSHA).

"Recognizing that the ‘old normal’ is not going to return, employers and employees have sought new models for a workplace that will protect the safety and health of employees who earn their living there," wrote Judge Jane Branstetter Stranch, a Barack Obama appointee, for the majority. "In need of guidance on how to protect their employees from COVID-19 transmission while reopening business, employers turned to the Occupational Safety and Health Administration."

The rule establishing the mandate had prompted a slate of legal challenges from at least 27 states as well as business and religious groups that argued the mandate is unconstitutional.

The Fifth Circuit Court of Appeals November 12 ordered OSHA to "take no steps to implement or enforce the Mandate until further court order," reaffirming an earlier decision it had made. The court said the mandate exposes the petitioners "to severe financial risk" and "threatens to decimate their workforces (and business prospects)."

The Biden administration was forced to halt the mandate following the ruling. But Friday, December 17, the Sixth Circuit court ruled that the mandate was needed to limit transmission of the virus.

In November, the Mississippi Justice Institute (MJI), on behalf of Gulf Coast Restaurant Group (GCRG), filed suit, challenging the mandate. GCRG is the corporate family that owns several Mississippi restaurants, including Half Shell Oyster House and the Rack House. GCRG, which is already struggling with staffing shortages in its restaurants, challenged the mandate in court because it will encourage even more of its employees to quit their jobs and could even make it difficult to keep many of its restaurants open.

"Gulf Coast Restaurant Group is disappointed with the decision but always expected this case would eventually be heard by the United States Supreme Court," said MJI Director Aaron Rice. "Employers all over America are already struggling to keep their businesses open. Now they are faced with losing more of their employees and complying with onerous federal regulations. We are going to continue fighting on their behalf and we believe the Supreme Court will recognize the litany of constitutional and other legal problems with this mandate."

We did it! The Mississippi Justice Institute (MJI) just stopped the Biden Administration’s private employer vaccine mandate in its tracks. The Fifth Circuit Court of Appeals temporarily halted the mandate, finding that there is "cause to believe there are grave statutory and constitutional issues with the Mandate."

MJI represents Gulf Coast Restaurant Group (GCRG) in the lawsuit challenging the mandate. GCRG is the corporate family that owns several Mississippi restaurants, including Half Shell Oyster House and the Rack House. GCRG, which is already struggling with staffing shortages in its restaurants, challenged the mandate in court because it will encourage even more of its employees to quit their jobs and could even make it difficult to keep many of its restaurants open.

Private employers in Louisiana and Texas have also joined the suit, as well as the Attorneys General of those states. The State of Mississippi is represented by Attorney General Lynn Fitch.

The federal vaccine mandate for private employers requires companies with over 100 employees to force their employees to be vaccinated, or be subject to weekly testing (at the employee’s expense) and constant mask wearing – on pain of losing their job.

While this halt to the federal vaccine mandate is only a temporary measure, it is a crucial first round victory. It signals that the courts understand the serious and myriad legal problems with this mandate, and are willing to hold the federal government to its constitutionally limited role.

If you don’t own a business that is subject to the federal vaccine mandate, or work for one that is, should you care about the legal fight to put a stop to it? Absolutely, for several reasons.

It’s never a good idea to let the federal government infringe on people’s personal liberties to force them to do what the government thinks is best for them. Not only does that make us less free, it often backfires. Encouraging voluntary vaccination is the best approach to foster greater participation and trust.

Additionally, if we stay quiet when the federal government exceed its constitutionally authorized power just because it doesn’t personally affect us, we have no way stop the federal government from overreaching when what it’s doing does personally affect us.

And finally, the federal vaccine mandate will affect all of us, whether or not it applies to our businesses or employers. The labor market is as tight as most businesses have ever seen it. The supply chain is riddled with delays. The last thing the economy needs is any more major disruptions, like thousands more employees quitting their jobs over incredibly intrusive medical mandates.

Gulf Coast Restaurant Group encourages its employees to get vaccinated. It even offers a $100 reward to every employee who does. While GCRG is proud of its efforts to encourage employee vaccination, it is equally proud to stand up for the rights of Mississippi businesses to operate without burdensome and unconstitutional federal regulations that prevent them from retaining their employees and adequately serving their customers. And MJI is proud to represent them in that fight.

With your continued support, we hope to keep fighting for Mississippians’ constitutional rights for many more years to come.

In Liberty,

Aaron Rice

Director, Mississippi Justice Institute

This recent legal invention will continue to turn American principles of presumed innocence and due process on their head.

In the topsy-turvy world of the Justice Kavanaugh confirmation hearings, we were told that a person should be considered guilty until proven innocent, and that we must always believe accusers even when their allegations are unverifiable, remote, and arise under suspect circumstances. For conservatives, the hearings were a reminder of why the presumption of innocence is a bedrock American principle, and why the Founders guaranteed that citizens would not be punished unless they had been convicted of a crime under a fair and impartial process.

But long after the Kavanaugh hearings have faded from the spotlight, another recent legal invention known as civil forfeiture will continue to turn American principles of presumed innocence and due process on their head. Unlike criminal forfeiture, in which the state seizes property of someone convicted of a crime, civil forfeiture is based on the tortured legal fiction that property can be “guilty” of being connected to a crime and that civil proceedings can therefore be brought against the property itself instead of its owner. Cars, cash, guns, and even houses are routinely seized. Rather than being innocent until proven guilty, property owners often have a heavy burden to prove that their property was not connected to criminal activity and can be punished by having the property forfeited — even if they have not even been charged with, much less convicted of a crime. The proceedings usually have minimal judicial oversight and no real due-process protections.

To make matters worse, law-enforcement agencies get to keep the property they seize, which creates a perverse incentive for agencies to abuse the process. Not surprisingly, abuses have been systemic and well documented. For example, the sheriff’s department in Desoto County, Miss., agreed to return a 2006 Chevy Trailblazer owned by the mother of a criminal defendant, but only if the department was paid $1,650. It is common for parents to have their property seized for the alleged criminal activity of their children, even if the parents are completely unaware of the alleged crime. In many cases, the parents enter into an agreement to let the agencies keep all or some of their property. Further complicating this pattern is the fact that often the seized property is worth less than it would cost in legal fees to contest the forfeiture. All of this leads critics to view many forfeiture proceedings as little more than a shakedown. This system also allows law-enforcement agencies to fund themselves, circumventing the legislative appropriations process.

At a bare minimum, agencies should have to publicly report the property they seize, and how they spend the proceeds, to prevent abuse and allow the public to ensure that forfeiture laws are being properly applied. However, even this modicum of reform is often met with opposition from law-enforcement agencies that have become an interest group in the debate over forfeiture laws.

Despite the protests of law-enforcement agencies, initial reforms have already shown the need for transparency and further protections. Mississippi recently passed a law requiring the Mississippi Bureau of Narcotics (MBN) to maintain a website listing all property that is seized by it and other law-enforcement agencies. The website was launched on July 2, 2018, and immediately revealed a widespread problem. MBN and many other agencies were routinely pursuing forfeiture of property under a system known as administrative forfeiture, which allowed the agencies to forfeit the property without filing a petition in court. In many instances, the only thing the agency was required to do was provide a description of the property on a website for 30 days. The problem was that the law allowing for administrative forfeiture had been repealed on July 1, 2018, the day before MBN launched the website.

The Mississippi Justice Institute, a constitutional-litigation center, sent a letter to MBN informing the agency that it was violating the law. Nine days later, the agency, to its credit, sent letters to multiple property owners informing them that MBN was returning this seized property, totaling over $100,000 in cash along with other items.

While it is reassuring that the agency followed the law once informed of the change, there is every reason to believe that the improper forfeitures would have continued indefinitely absent the transparency that allowed an outside group to notice them. Even more disturbing is that, when alerted to the change in the law, MBN still had time to file petitions in court to pursue forfeiture of the property under regular civil forfeiture laws. That the agency chose not to may indicate that it knew the forfeitures would never hold up in court.

Law-enforcement agencies are entrusted with enormous responsibility. Every effort should be made to ensure there is not even an appearance of self-interest when those agencies enforce the law. Civil forfeiture clearly jeopardizes that independence, as well as basic American principles of fairness and justice. While further reform is needed, forfeiture transparency is a basic minimum that should be established in every state.

This column appeared in National Review on October 17, 2018.