Legal scholars who have studied the proposed “personhood” amendment to the Mississippi Constitution can agree on this: They have a much better idea of what the sweeping amendment could do than what it will do.
They also agree that if passed Nov. 8, lawyers representing opponents of the anti-abortion measure will be in federal court the next day. They will argue for an injunction on the grounds it removes constitutional protections established nearly four decades ago in the U.S. Supreme Court’s Roe v. Wade decision. That ruling upheld a woman’s right to terminate a pregnancy in the first trimester.
Backers of the amendment are keeping their fingers crossed the challenge plays out in the federal arena. They think putting the issue of “personhood,” or the doctrine that life begins at fertilization, on a track headed for the U.S. Supreme Court gives them their strongest chance to overturn Roe v. Wade.
Initiative 26 supporters cite a statement by Chief Justice Warren Burger to the plaintiff’s lawyers during oral arguments that led to the long ago ruling. “If it were established,” Burger said, “that an unborn fetus is a person within the protection of the 14th Amendment, you would have an almost impossible case.”
Prove a fetus is a person, as specified in Initiative 26, and Roe v. Wade goes away, they say.
“It is probably the kill- shot to abortion,” said Brad Prewitt, a Tupelo lawyer and campaign director for Yes on 26, a coalition that includes Personhood Mississippi and The Liberty Council.
In allowing Initiative 26 on the ballot, the Mississippi Supreme Court indicated it would be willing to more thoroughly consider the arguments of opponents to the amendments but not until after the referendum. The American Civil Liberties Union, Planned Parenthood and other opponents argued that the Mississippi Constitution explicitly states that the initiative process cannot be used to change the Bill of Rights in the state constitution. The initiative process involves gathering a sufficient number of signatures of registered voters to place an issue on a statewide ballot.
If the state’s high court sides with the challengers, the “personhood” provision would have to go the legislative route by which Mississippi lawmakers would certify the question for a whole new vote, said Jonathan Will, an assistant professor at the Mississippi College School of Law and director of the law school’s Bioethics and Health Law Center.
On the federal side, he said, room could exist to argue that the amendment is too constitutionally vague; in fact, so vague, Will added, “that it gives the state the option to do many things,” such as ban contraceptives and fertility clinics.
Federal courts may be compelled to act quickly, because of the time sensitivity that comes into play with banning such contraceptives as the “morning after” pill, Will said.
A further need for a timely ruling could come as the state attorney general and prosecutors around the state begin enforcing the amendment based on their individual interpretations, Will noted. “Once this thing would become effective, the attorney general would have lots of powers to go prosecute lots of things.”
That’s precisely the challenge, said Matthew Hall, associate professor in the School of Law at the University of Mississippi. “We don’t know how local district attorneys around the state might choose to prosecute,” he said.
In simple terms, he said, the federal courts have authority to say whether the amendment conforms to the U.S. Constitution and state courts can say it means “this” or “that” and may or may not pertain to birth control.
The scenario he sees as likely, Hall said, is that challengers will get the federal court to enjoin enforcement of the amendment until the state Supreme Court has time to “give some interpretation of this amendment” early in the process.
He said the language of the amendment that specifies life begins at fertilization could leave the Mississippi Supreme Court little leeway other than to prohibit most forms of contraceptives. “I don’t see under that language many forms of birth control that would be legal,” he said.