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~ THE SUPREME COURT OF THE STATE OF MISSISSIPPI
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cO JACKSON WOMEN'S HEALTH
ORGANIZATION, on behalf of itself and its
patients; SACHEEN CARR-ELLIS, M.D., M.P.H.,
on behalf of herself and her patients PETITIONERS

vs.
THOMAS E. DOBBS, M.D., M.P.H., in his official
capacity as State Health Officer of the Mississippi
Department of Health, ET AL. RESPONDENTS

PETITION FOR INTERLOCUTORY APPEAL, OR IN THE ALTERNATIVE, FOR A

WRIT OF MANDAMUS, AND REQUEST FOR EMERGENCY RELIEF

Claudia Hammerman* Robert B. McDuff, MS Bar# 2532

Alexia D. Korberg* Mississippi Center for Justice
Aaron S. Delaney* 767 North Congress Street
Heather C. Milligan* Jackson, MS 39202
Samantha A. Weinberg* (601) 259-8484
Paul, Weiss, Rifkind, Wharton & rbm@mcdufflaw.com
Garrison, LLP
1285 Avenue of the Americas Hillary Schneller*
New York, NY 10019 Jiaman ("Alice") Wang*
(212) 373-3000 Center for Reproductive Rights
chammerman@paulweiss.com 199 Water Street, 22nd Floor
akorberg@paulweiss.com New York, NY 10038
ade1aney@paulweiss.com (917) 637-3777
hmilligan(@,paulweiss.com hschneller@reprorights.org
sweinberg@paulweiss.com awang@reprorights.org
*Pro Hae Vice *Pro Hae Vice

Counsel for Petitioners

~4.0TIO
 Today, July 7, Mississippi' s Trigger Ban took effect, making it a crime to provide nearly

all abortion care in this state. Overnight, Mississippians' access to abortion was extinguished when

the only abortion provider in the state-Jackson Women's Health Organization ("JWHO")-was

forced to close its doors after providing abortion services for decades.

Abortion access ended in Mississippi despite this Court's holding 24 years ago, in Pro-

Choice Mississippi v. Fordice , 716 So. 2d 645 (Miss. 1998), that the Mississippi Constitution

guarantees to each individual-and not a majority of the legislature-a right to make this most

fundamental decision about their bodies, lives, and futures. Fordice was correct when it was

decided and it remains the law today.

Two days ago, a Chancery Court judge-specially appointed by this Court after

unexplained recusals by all four judges in Hinds County-ended abortion care in Mississippi by

declining to enforce the Mississippi Constitution to bar enforcement of two abortion bans

Petitioners challenged. Instead, that court speculated that this Court would cede its authority to

interpret its own Constitution and follow in lockstep with the U.S. Supreme Court to overrule

Fordice just because the U.S. Supreme Court overruled Roe v. Wade. The Chancery Court's duty,

however, was to enforce the law as it stands today, which guarantees Mississippians the right to

abortion under the Mississippi Constitution.

This Court should grant this petition to appeal or issue mandamus relief and enjoin the

Bans. Absent relief, Mississippians will continue to be denied their rights under the Mississippi

Constitution to privacy and bodily autonomy, as they are compelled by the State to endure the risks

of pregnancy and bear children against their will. The significant, ongoing, and irreparable harm

necessitates this Court's immediate action. Petitioners respectfully request this Court enter relief

so that Petitioner JWHO can reopen as soon as possible during the week of July 11.

1
 ISSUES PRESENTED AND RELIEF REQUESTED

The Mississippi Constitution provides protection for individual rights independent of any

protection-or lack thereof-in the U.S. Constitution. And this Court is the final authority on the

meaning of the Mississippi Constitution. In 1998, this Court held that the Mississippi

Constitution's guarantee of the right to privacy includes the right of each individual to decide

whether to continue a pregnancy and give birth to a child, or to obtain an abortion. Pro-Choice

Miss. v. Fordice, 716 So. 2d 645 (Miss. 1998). The Chancery Court had a duty to enforce the

Mississippi Constitution, apply the binding precedent of Fordice, and enter preliminary injunctive

relief against the Bans. Instead, it refused to follow this Court's binding precedent based on mere

speculation that the Court would overrule Fordice just because the U.S. Supreme Court overruled

Roe, and, on that basis, refused to enjoin the Bans.

The issue presented is: Whether the Trigger Ban and the 6-Week Ban violate the right to

abortion guaranteed by the Mississippi Constitution, as this Court held in Fordice. Petitioners

request this Court grant this petition or issue mandamus relief, and enter a preliminary injunction

barring the Bans' enforcement, to retain the status quo that existed for decades, and to stop the

grave, ongoing harm.

STATEMENTS OF THE CURRENT STATUS OF THIS CASE,

OF TIMELINESS, AND OF RELATED CASES

The Chancery Court denied Petitioners' request for a temporary restraining order and/or

preliminary injunction on July 5, 2022. Relief is being sought within the time prescribed by the

Mississippi Rules of Appellate Procedure. Petitioners are aware of no other related cases pending

before this Court or any other Mississippi state court related to this matter.

STATEMENT OF FACTS
I. The Abortion Bans
On June 24, 2022, the U.S. Supreme Court abandoned 50 years of unbroken federal

2
precedent in Dobbs v. Jackson Women 's Health Organization, No. 19-1392, 597 U.S._ (2022),

overruling Roe and Casey, which had guaranteed a right to abortion under the U.S. Constitution.

In 2007, Mississippi passed Miss. Code Ann.§ 41-41-45 (the "Trigger Ban"). The Trigger

Ban prohibits nearly all abortions in Mississippi, with exceedingly narrow exceptions for abortions

"necessary for the preservation of the mother' s life or where the pregnancy was caused by rape,"

if a formal charge of rape has been filed. Id. § 41-41-45(2), (3). Violation of the Ban by any

person--other than the pregnant person-risks imprisonment of between one and ten years. Id. §

41-41-45(4). On June 27, 2022, the Attorney General published her determination that the U.S.

Supreme Court overruled Roe and the near-total abortion ban would be upheld by that Court. See

id. § 41-41-45. Ten days later-today, July 7- the Trigger Ban took effect.

In 2019, Mississippi enacted a 6-Week Ban, which prohibits abortions after just six (6)

weeks from a pregnant person' s last menstrual period and thus most abortions sought in the state

of Mississippi. See Miss. Code Ann. § 41-41-34.1(2)(a). This Ban, too, has extremely narrow

exceptions for abortions performed "to prevent the death of a pregnant woman" or "a serious risk

of the substantial and irreversible impairment of a major bodily function of the pregnant woman."

Id. § 41-41-34.1(2)(b)(i). Violations of the 6-Week Ban are punishable by significant fines and/or

imprisonment in the county jail for up to 6 months, and physicians risk loss of their medical

licenses. Miss. Code Ann. § 41-41-39; § 73-25-29(16). The 6-Week Ban has been subject to a

preliminary injunction in federal court, but that injunction, which is based on federal law, could

be lifted. See Jackson Women 's Health Org. v. Dobbs, 951 F.3d 246 (5th Cir. 2020).

II. Proceedings in the Chancery Court

A. Petitioners' Lawsuit

Hours after the Attorney General published her determination that the Trigger Ban should

take effect on July 7, Petitioners filed suit in the Hinds County Chancery Court. Petitioners are

3
Jackson Women's Health Organization-the only licensed abortion facility in the state-and

Sacheen Carr-Ellis, M.D., M.P.H., its medical director. Petitioners challenged the Bans, to bar

their enforcement and prevent significant and irreparable harm to Petitioners and their patients.

Petitioners sought to enforce this Court's holding in Fordice, 716 So. 2d at 666. Although

the U.S. Supreme Court's June 24 decision in Dobbs overruled that Court's decision in Roe v.

Wade-taking away federal constitutional protection for the right to abortion-Mississippians

retain their independent rights under the Mississippi Constitution to privacy and bodily autonomy

when they become pregnant. Accordingly, Petitioners urged the Chancery Court to maintain the

status quo in Mississippi: For nearly 50 years since Roe, and for all but 21 years since statehood

prior to that time, Mississippians could make decisions about abortion. See Fordice, 716 So. 2d at

651 (when "the Mississippi Constitution was adopted, abortion was legal until quickening, some

four to five months into pregnancy."); Defs.' Opp. 3-4 (abortion was legal before quickening until

1952, when it was first made illegal).

Absent injunctive relief, this right has been nullified because abortion is now a crime in

Mississippi. Petitioners are forced to turn away every patient seeking to exercise their right to seek

abortion care, or face risk of draconian penalties. Pregnant Mississippians can no longer exercise

their right to make one of the most fundamental decisions about their bodies, and their futures, and

their families' futures, and instead are compelled by the State to continue their pregnancies and

give birth against their wills. The irreparable and irreversible harm is immense. Pregnant

Mississippians seeking to exercise their constitutional right to abortion are instead required by the

State to accept the 75 times greater risk of continuing a pregnancy and giving birth, and, for Black

Mississippians, even greater risks. Carr-Ellis Aff. ,r 14. Mississippians are further forced to bear
the long-term impacts of forced pregnancy and childbearing on their ability to shape their lives

and their families' lives. Id. ,r 15. Nothing can reverse or fully compensate those harms.

4
 The State argued that it can compel Mississippians to endure these grave violations of their

rights because the U.S. Supreme Court' s decision overruling Roe automatically extinguished the

independent right to abortion under the Mississippi Constitution this Court recognized in Fordice.

The State also asserted that, as a result of the U.S. Supreme Court' s decision in Dobbs, decisions

about pregnancy are controlled by the State- not pregnant Mississippians. Defs.' Opp. 10. It failed

to acknowledge that this Court has never overruled Fordice and that Mississippi voters also

declined to do so in 2011 when they were directly asked whether the Mississippi Constitution

should be amended to grant personhood and legal rights and protections to fetuses. 1

B. Chancellors' Recusal and this Court's Appointment of a Special Chancellor

The day after Petitioners filed suit, all four Chancellors for the Chancery Court of Hinds

County, First Judicial District, recused themselves from this matter and requested this Court

appoint a Special Chancellor. They provided no explanation for the recusals. Recusal Order 1, Dkt.

No. 10.

On the evening on June 30, this Court issued an order appointing the Honorable Debbra K.

Halford, Judge of the Fourth Chancery Court District. Appointing Order (2022-AP-00648, Order

No. 242472. Special Chancellor Halford set a hearing on Petitioners' request for temporary

injunctive relief for July 5. Order Setting Hearing, Dkt. No. 31.

The July 5 hearing opened with an invitation to "prayer and reflection" for those who were

interested. Reverend Calvin Cosnahan, serving as a special chaplain for the day' s session, led the

prayer. 2 The prayer began: "Lord, we pray for the presence of your Holy Spirit in this courtroom

today . . . . We seek your truth, not our own. We seek your wisdom, not our own. Bless and inspire

1 Frank James, Mississippi Voters Reject Personhood Amendment by Wide Marg in, NPR (Nov. 8, 2011 , 11 :28 PM),
https://www .npr.org/sections/itsallpolitics/20 l l /l I/08/ l 42159280/m ississippi-voters-reject-personhood-amendment.
2 Mississippi Trigger Law Hearing (July 5, 2022), https://www.youtube.com/watch?v=4M5D IBupC2U&t=38s.

5
Judge Halford in her deliberations and judgments here today." Id.

C. The Chancery Court's Order

Hours after the hearing, the Chancery Court denied Petitioners' request for a preliminary

injunction in an eight page written opinion. The court did not conclude that this Court had already

overruled Fordice , or, as the State argued, that the U.S. Supreme Court' s ruling in Dobbs

automatically rendered Fordice bad law. Instead, the court applied a novel standard to deny the

injunction based on its speculation that it is "more than doubtful that the Mississippi Supreme

Court will continue to uphold Fordice" if and when this case reached this Court. Order 6, Dkt. No.

39 (hereinafter "Order").

The Chancery Court dismissed Petitioners' claims of irreparable harm, acknowledging

merely that Petitioners' patients may suffer harm that is "irreparable from those patients'

perspectives." Order 7. " [T]he real harm," the court concluded, was to the State, given its alleged

interests in enforcing its Bans. See Order 7. The court gave no consideration as to whether a

temporary restraining order and/or preliminary injunction would preserve the status quo.

STANDARD OF REVIEW

An interlocutory appeal may be sought if "a substantial basis exists for a difference of

opinion on a question of law as to which appellate resolution may: (1) [m]aterially advance the

termination of the litigation and avoid exceptional expense to the parties; or (2) [p]rotect a party

from substantial and irreparable injury; or (3) [r]esolve an issue of general importance in the

administration of justice." MRAP 5(a).

Mandamus relief is available where ( 1) the petitioner is authorized to bring the suit; (2) the

petitioner has a clear right to the relief sought; (3) the defendant has a legal duty to do what

petitioner seeks to compel; and (4) there is no other adequate remedy at law. See Pryer v. Gates,

312 So.3d 741 , 747 (Miss. Ct. App. 2021); see also MRAP 21(a). There is no appeal as of right

6
from the denial of a temporary restraining order or preliminary injunction. And, this Court has

original jurisdiction to consider writs to compel a trial judge to act in a matter pending before that

judge. In re Chisolm, 837 So. 2d 183, 188 (Miss. 2003).

In granting or denying a writ of mandamus, the court must exercise its discretion non-

arbitrarily, "on equitable principles and in accordance with well-settled principles of

law." Pryer, 312 So.3d at 745 (quoting Chatham v. Johnson, 195 So. 2d 62, 64-65 (Miss. 1967)).

The Court "should take into consideration the variety of circumstances . .. among other things, the

facts of the particular case, the consequences of granting the writ and the nature of the wrong which

would result from the refusal to grant the writ." Chatham, 195 So. 2d at 65.

REASONS WHY RELIEF SHOULD BE GRANTED

I. The Chancery Court Had a Duty to Enforce the Mississippi Constitution's
Guarantee of an Individual Right to Abortion.

A. The Mississippi Constitution Guarantees a Right to Abortion.

This Court has long held that "[e]ach individual enjoys a right of privacy," "a right to the

inviolability and integrity of our persons, a freedom to choose or a right to bodily self-

determination. In re Brown, 478 So. 2d 1033, 1039 (Miss. 1985). This right of privacy-including

a right against state-compelled bodily intrusions-is grounded in "natural law" and the "common

law" of this state. Id. at 1040; see also id. (citing Deaton v. Delta Dem. Publ 'g Co., 326 So. 2d

471, 473 (referring to common law)). This right is given "constitutional status by Article 3, § 32

of the Mississippi Constitution of 1890," id. , which states: "the enumeration of rights in this

constitution shall not be construed to deny and impair others retained by, and inherent in, the

people."

The right of privacy is "so personal that its protection does not require giving a reason for

its exercise." Id. at 1041. Rather, "[t]hat one is a person, unique and individual, is enough." Id.

More specifically, "Mississippi follows the fundamental notion that the patient is the master of

7
his/her own body." Fox v. Smith, 594 So. 2d 596, 604 (Miss. 1992). And "[i]t requires little

awareness of personal prejudice and human nature to know that, generally speaking, no aspect[]

of life is more personal and private than those having to do with one's ... reproductive system."

Young v. Jackson, 572 So. 2d 378, 382 (Miss. 1990); see also Dodd v. Hines, 229 So. 3d 89, 96

(Miss. 2017) (fact questions as to whether patient consented to removal of her ovaries precluded

summary judgment); Fox, 594 So. 2d at 597 (reversing lower court's grant of directed verdict for

physician, holding genuine issue of material fact existed as to whether patient consented to IUD

removal). Constitutional protection for this privacy right "rests upon the bedrock of this state's

respect for the individual's right to be free of unwanted bodily intrusions no matter how well

intentioned." In re Brown, 478 So. 2d at 1040.

In 1998, this Court confumed that people who become pregnant do not cease to be full and

equal citizens under the Mississippi Constitution by losing the inherent right to privacy guaranteed

to all others. Fordice, 716 So.2d 645. The mere fact of pregnancy does not cede an individual's

right to make fundamental decisions about their body and their future to elected legislatures. Id.

That conclusion was based on the Mississippi Constitution and its own precedent guaranteeing a

right to privacy, which this Court described as "the most comprehensive and guarded right" in the

Constitution. Id. at 654. It was also based on Mississippi's own history, where abortion has been

legal at least "some four to five months into pregnancy" for nearly all but 21 years since the

Constitution was ratified. See id. at 651; see also Defs.' Opp. 3-4 (abortion before quickening

made illegal in 1952). Thus while the Court considered the U.S. Supreme Court's interpretation of

the U.S. Constitution in Roe and Casey, these considerations were secondary to the weight of

Mississippi legal precedent and history.

In Fordice, this Court reiterated that, in construing the Mississippi Constitution, it "should

look to the history of the times and examine the state of things in existence when the Constitutional

8
provision in question was adopted, in order to ascertain the mischief sought to be remedied."

Fordice, 716 So.2d at 651 (quoting McCaskillv. State , 227 So. 2d 847, 850 (Miss. 1969)). Heeding

that guidance, this Court concluded that, Mississippians retain an inherent right to decide how their

pregnancies will end. See id. at 651-54. That right- including the right to abortion-is among

those rights guaranteed by Article 3, § 32 of the Mississippi Constitution that the enumeration of

certain rights in the state constitution cannot "deny and impair." See id. at 653-54.

The Bans unquestionably violate pregnant Mississippians' inherent and constitutional

rights to decide whether to continue a pregnancy and give birth. A straightforward application of

this Court's holdings under the Mississippi Constitution requires enjoining the Bans.

Fordice, and the precedent on which it relies, provides critical protection against state-

sanctioned reproductive control measures, with which this state has a tragic history. The record

reaches back, prior to statehood, to slavery, when Black women endured brutal sexual violence at

the hands of enslavers and were coerced to bear and rear children under bondage. Dorothy E.

Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty, 22-55 (2d. ed.

2017). The law protected and facilitated white slaveholders' treatment of enslaved people as

property, afforded white slaveholders an economic interest in enslaved persons ' procreation, and

denied enslaved people rights to maintain family bonds. See id.

Later, this state, as reported by Fannie Lou Hamer, "sterilized six out of ten black women

in Sunflower County at the local hospital-against their will." Jackson Women 's Health Org. v.

Currier, 349 F. Supp. 3d 536, 540 n.22 (S.D. Miss. 2018) (citing Rickie Solinger, Wake Up Little

Susie 57 (1992)), aff'd, 945 F.3d 265 (5th Cir. 2019), rev 'd and remanded, No. 19-1392, 2022 WL

2276808 (U.S. June 24, 2022). This state also punished those who had children-selectively

supporting families and erecting barriers to parents' employment, with the impact falling most

heavily on Black women and families. To take just one example, two Black mothers pursuing work

9
as teachers' aides challenged a local Mississippi school district policy excluding unmarried parents

from jobs. Andrews v. Drew Mun. Separate Sch. Dist., 371 F. Supp. 27 (N.D. Miss. 1973), aff'd

507 F.2d 611. All of the candidates denied jobs under the policy were Black women. Id. at 35-36

("discriminatory effect of the Drew policy upon unmarried women is inescapable," as "only

unmarried females [had] been prohibited from employment"); id. at 30 (evidence showed that

"[n]o white person had been ... denied employment" under the policy).

As this history demonstrates, many Mississippians have not enjoyed the full promise of the

Mississippi Constitution' s protection for the right to make decisions about whether, when, and

how many children to bear. But the Mississippi Constitution, as this Court interpreted it in Fordice,

remains a bulwark against the gravest abuses by the State. And generations of Mississippians have

relied on its protection of this individual right to privacy- a "protection against the tyranny of the

majority and against the power of the state." In re Brown, 478 So. 2d at 1036-37.

Fordice is and should remain the law. There is nothing "pernicious," "impractical," or

"mischievous in [] effect, and resulting in detriment to the public" that could justify overruling

Fordice. See State ex rel. Moore v. Molpus , 578 So. 2d 624, 635 (Miss. 1991) (discussing stare

decisis). Rather, it would be perverse to reject this precedent, making pregnant Mississippians less

than equal citizens by ceding their right to bodily autonomy to the State.

B. The Chancery Court Abused its Discretion by Refusing to Preliminarily

Enjoin the Bans.

The Chancery Court abused its discretion by speculating that, because the U.S. Supreme

Court in Dobbs overruled Roe, this Court would overrule Fordice, and based on that conjecture,

refusing to enjoin the Bans. Order 6. That reasoning is contrary to the rule oflaw and to this Court' s

authority to have the final word on the meaning of the Mississippi Constitution.

A fair reading of Fordice demonstrates the speculative nature of the Chancery Court's

10
reasoning. Contrary to its Order, and the State' s arguments, the Mississippi Constitution' s right to

privacy, including the right to abortion, does not depend on whether the U.S. Constitution

guarantees similar rights. Instead, in Fordice, this Court exercised "its prerogative to interpret the

state constitution independently." Contra Defs. ' Opp. 12. Fordice considered only state law

claims, brought under the Mississippi Constitution. 716 So. 2d. at 665. It relied on Mississippi

precedent and history. See supra. While it also considered Roe and Casey, citation to and

consideration of federal case law cannot supplant the Court' s clear holding that was based on its

interpretation of the state constitution' s independent right to privacy-"the most comprehensive

and guarded right" in the "Mississippi Constitution." Fordice, 716 So. 2d at 654 (emphasis added).

As this Court said in Fordice: "A federal court may not interpret the State Constitution.

We reserve the ' sole and absolute right' to interpret the Mississippi Constitution." 716 So. 2d at

665-66 (citing Penick v. State, 440 So. 2d 547, 551 (Miss. 1983)). "The words of our Mississippi

Constitution are not balloons to be blown up or deflated every time, and precisely in accord with

the interpretation the U.S. Supreme Court, following some tortuous trail." Penick, 440 So. 2d at

552. And this Court is "not obligated to accept what [it] deem[s] to be a major contraction of

citizen protections under our constitution simply because the United States Supreme Court has

chosen to do so." Sitz v. Dep 't ofState Police, 506 N.W.2d 209, 218 (Mich. 1993). It is "obligated

to interpret [its] own organic instrument of government." Id. In Fordice , this Court exercised its

duty and prerogative to interpret the Mississippi Constitution, holding that it protects the right to

abortion independently, but to the same extent as, then-existing federal law. 716 So. 2d. at 655.

Dobbs does not and cannot determine what rights the Mississippi Constitution protects.

That falls to this Court because, " [w]hile the federal courts are free to determine the

constitutionality of abortion statutes based on a federal analysis, the State reserves the right to

determine state constitutionality." Fordice , 716 So. 2d at 666. The State' s notion that federal

11
constitutional law is determinative-especially absent clear statements by this Court-would

fundamentally rewrite state constitutional interpretation canons while rejecting the independent

authority of the state courts to interpret their state constitutions. It contradicts what this Court "fully

recognize[ s:] ... that decisions of the Supreme Court of the United States construing provisions

of the federal constitution are not binding on a state court construing similar provisions of its own

state constitution." Wilson Banking Co. Liquidating Corp. v. Colvard, 161 So. 123, 127 (Miss.

1935).

Absent a clear directive from this Court, Fordice remains binding on the Chancery Court.

See Brown v. State, 336 So. 3d 134, 147 (Miss. Ct. App. 2020) ("[W]e will continue to follow the

[Mississippi] Supreme Court's directly on-point decisions . .. until the [Mississippi] Supreme

Court itself has overruled those decisions."). This Court has given no such directive.

No one disputes that this Court may overrule its own cases. But this Court has not done so.

And the Chancery Court had no authority to rule based on its guess as to what this Court might do.

II. The Chancery Court's Order Disrupted Decades of the Status Quo.
"The true object and purpose of an interlocutory injunction is to hold and preserve in status

quo ... until the court is able to finally adjudicate the rights and duties of the parties." Rochelle v.

State, 75 So. 2d 268, 270 (Miss. 1954). The status quo in Mississippi for the 50 years since Roe v.

Wade, 410 U.S. 113 (1973), was that the decision of whether to continue a pregnancy and give

birth to a child belongs to the individual and not the legislature, all in accordance with both Roe

and, independently, Fordice. And for 135 of the 156 years of statehood prior to that time, the

decision about abortion-at least four to five months into pregnancy-belonged to the individual.

See Fordice, 716 So. 2d at 651 ("[A]t the time the Mississippi Constitution was adopted, abortion

was legal until quickening, some four to five months into pregnancy."); Defs.' Opp. 3-4. By

refusing to apply this Court's binding precedent, the Chancery Court upended decades of the status

12
quo.

Generations of Mississippians have come of age under the promise that should they become

pregnant, the decision whether to continue their pregnancy is theirs-not the State' s- to make.

Overnight, Mississippians lost access to this safe, essential, and time-sensitive care. To prevent

further disruption to Mississippians' settled expectations and preserve the decades-old status quo,

this Court should enjoin the Bans pending resolution of the merits.

III. The Chancery Court's Order is Causing Irreparable, Ongoing, and Irreversible
Harm to Mississippians That Far Outweighs Any Alleged Harm to the State.
Absent injunctive relief, the Bans will cause significant, immediate, and irreversible harm

for Petitioners and their patients. This Court should grant relief to prevent further harm.

As a result of the Chancery Court' s abuse of discretion, as of today Mississippians who

seek to terminate their pregnancies can no longer do so in this state. This is because of the

substantial professional sanctions and criminal and civil penalties threatened by the Bans, which

have forced Petitioner-the sole abortion clinic in Mississippi- to cease providing abortion care

and tum away patients seeking care. Forced pregnancy and childbirth renders pregnant

Mississippians less than equal citizens by invading their bodily integrity and robbing them of their

autonomy to make the most life-altering of decisions: whether and when to have children. See

Carr-Ellis Aff. ~ 14. Because that decision impacts every aspect of a person and their family' s

lives-from their health, to their educational and professional attainment, to their economic well-

being and participation in social and civic life- the Bans inflict substantial harms. Id. ~~ 14-15.

Those harms can neither be compensated nor undone after a trial on the merits. See In re Brown,

478 So. 2d at 1040 (invasion of bodily autonomy contradicts "the bedrock of this state's respect

for the individual ' s right to be free of unwanted bodily intrusions"). They are "as irreparable as

any that can be imagined" as they also "flow from the deprivation of constitutional rights. " Pilgrim

13
Med. Grp. v. NJ State Bd. of Med. Examiners, 613 F. Supp. 837, 848-49 (D.N.J. 1985); see also

Elrod v. Burns, 427 U.S. 347, 373 (1976) (deprivation of constitutional rights is irreparable harm).

The Chancery Court dismissed the harms arising from the constitutional violation, and

minimized the risk of pregnancy and childbirth, stating harms to Petitioners' patients "boil down

to economic harms . .. to [] patients for the costs of delivery and caring for unwanted children."

Order 6-7. In fact, Mississippians forced to continue their pregnancies and give birth face grave

risk: in this state, continuing a pregnancy and giving birth to a child is more than 75 times more

dangerous than having an abortion, and even greater for Black Mississippians. Carr-Ellis Aff. ,r,r
14, 23. Further, for the approximately one-third of pregnancies that end in a C-section, patients

will have a major abdominal surgery that carries risks of infection, hemorrhage, and damage to

internal organs. Id. ,r 23. And, although the Chancery Court "acknowledge[d] the ... perceived
loss of life opportunities [Petitioners' patients] will face" is "irreparable from those patients'

perspectives," Order 7, it failed to credit the well-documented long-term consequences of being

denied a wanted abortion, for birthing people, their children, and their families. See Carr-Ellis Aff.

,r,r 14- 15, 23. Those harms are long-term, irreversible, and non-compensable.
Yet, the Chancery Court held that "the real harm" was to the State, and an injunction would

undermine its interests. See Order 7- 8. The State, however, will suffer no injury, because an

injunction will simply preserve the status quo that has existed in this state for nearly 50 years.

Further, "in this state ... we do not sacrifice rights to mere interests." In re Brown, 478 So. 2d at

103 7. And Mississippi has no legitimate interest in violating the Mississippi Constitution and

cannot be harmed by being prevented from doing so. See Giavani Carandola, Ltd. v. Bason, 303

F.3d 507, 521 (4th Cir. 2002) (preliminarily enjoining likely unconstitutional law does not harm

the state; "[i]f anything, the system is improved by such an injunction").

Further, the State can advance its interests and not control Mississippians' reproductive

14
lives by affording pregnant people themselves the autonomy to make their own decisions about

pregnancy and family . Despite professing interests in "maternal health and safety" and "respect

for and preservation of prenatal life at all stages of development," Mississippi ignores

recommendations by its own experts to address its devastating maternal and infant mortality crises

and stark racial disparities in both maternal and infant health. 3 State reports share a common

recommendation to help address these tragedies: extending postpartum Medicaid eligibility from

60 days to one year after childbirth. 4 Yet, the State has never implemented this recommendation

and has taken active steps to frustrate it. 5

By depriving Mississippians of any say over whether and when to have children, the Bans

take away Mississippians' ability to direct the course of their lives, and have already caused

significant and irreparable harm that far outweighs any harm to the State.

IV. Petitioners Have No Adequate Remedy at Law.

Petitioners lack an adequate remedy: they cannot appeal the Chancery Court' s denial of a

preliminary injunction. Accordingly, they meet the requirements for mandamus relief. And

delayed relief cannot reverse the harm caused to each Mississippian who is denied a wanted

abortion that, absent the Bans, Petitioners would provide to their patients.

CONCLUSION
This Court should grant Petitioners permission for an interlocutory appeal, or in the

alternative, grant mandamus relief and enjoin the Bans so that Petitioners can resume abortion

services as soon as possible during the week of July 11.

3
Miss. State Dep't of Health, Infant Mortality Rep. 2019 & 2020, 7, 28,
https://msdh.ms.gov/msdhsite/ static/resources/ 18752.pdf; Mi ss. State Dep't of Health, Miss. Maternal Mortality
Rep. 2013- 2016, 25 (Mar. 202 1),
https://msdh.ms.gov/msdhsite/index.cfin/3 1,8127,299,pdf!MS Maternal Mortality Report 2019 Final.pdf.
4
See Infant Mortality Rep., 28; Maternal Mortality Rep., 5, 23 .
5 See Emily Wagster Pettus, Associated Press, Missi ssippi House Leaders Kill Postpartum Medicaid Extension

(Mar. 9, 2022), https://apnews.com/article/health-mississippi-medicaid-c49dcbdc7b356f593485853aee5458cl .

15
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the foregoing Petition for Interlocutory Appeal, or in the

Alternative, for a Writ of Mandamus was filed with the Clerk of the Court, and will be emailed to

Doug Miracle, Director of the Civil Litigation Division, Mississippi Attorney General' s Office, at

doug.miracle(a),ago.ms.gov, and to the Honorable Judge Debbra K. Halford at

ctadministrator@franklincountvms.org.

Dated: July 7, 2022 Respectfully submitted,

ls/ Robert B. McDuff

Robert B. McDuff, MS Bar# 2532
767 North Congress Street
Jackson, MS 39202
(601) 259-8484
rbm@mcdufflaw.com

Counsel for Petitioners