Mississippi voters on Tuesday made the Magnolia State the second to reject a personhood amendment that would have put the state on record as defining human life beginning at conception.
The amendment was controversial as it pitted some pro-life advocates supporting it against others who recognized the amendment would not ban abortions and would perhaps give a pro-abortion dominated Supreme Court or lower courts a chance to reaffirm the Roe v. Wade decision that allowed virtually unlimited abortions in 1973.
Mississippi follows Colorado, which also rejected the amendment twice in both 2010 and 2008. The 2010 amendment lost by a 70-30 percentage point margin as Amendment 62 failed to gain a majority in any Colorado county. Colorado voters defeated Amendment 48 in 2008 by a 73-27 percentage margin with 1,605,978 voters rejecting it compared to 585,561 who were supportive. The 2010 Colorado personhood amendment received the support of more than 100,000 fewer voters than in 2008.
The amendment would have defined unborn children as persons under the law starting at the point of conception and would, if upheld, sponsors claim it would essentially prohibit abortions in the state. However, top pro-life attorneys and organizations said they didn’t expect the amendment to be upheld in court and they say, even if it does survive a legal challenge, the amendment likely won’t ban any abortions.
A final poll leading up to tonight’s vote predicted a close race, with the PPP poll showing the amendment (Initiative 26) could go either way — with 45% of voters supporting the amendment and 44% opposed. Another 11 percent of Mississippi voters were undecided on the initiative in the Monday poll. The survey found men (48-42), white voters (54-37), and Republicans (65-28) support the personhood amendment while women (42-46), African Americans (26-59), Democrats (23-61), and independents (35-51) oppose it.
Had the personhood amendment been approved, it likely would have been overturned at the state court level.
Before the personhood amendment went to the ballot as Initiative 26, the Mississippi Supreme Court ruled in a case brought by the ACLU and Planned Parenthood. The state’s high court tackled a decision Circuit Court Judge Malcolm Harrison issued saying Measure No. 26, the personhood amendment can be placed before voters “and the constitution recognizes the right of citizens to amend their constitution.” His decision came in a case under which opponents of the amendment say the amendment can’t be used to change the Bill of Rights, which bringers of the lawsuit said it would do.
The decision had the court saying it would not issue a ruling on whether the amendment could be used to change the state’s Bill of Rights until after the vote on the amendment. As Paul Linton, a pro-life attorney who has worked with a number of national pro-life organizations, tells LifeNews.com, that meant Mississippi voters could spend significant time and money pursuing the amendment only to see it later shot down in court for unconstitutionally attempting to change the Bill of Rights.
“I thought it was curious, to say the least, that the majority opinion refused to decide whether the “personhood” initiative is an appropriate use of the initiative process under the Mississippi Constitution, given the prohibition in the state constitution against using the initiative to add, modify or repeal any portion of the Bill of Rights,” he said. “The two dissenting judges would have struck the measure from the ballot as an improper “addition” or “modification” to the Bill of Rights.”
In part because two judges have already indicated they would strike down the personhood amendment after the vote under a post-vote lawsuit, Linton believed it wouln’t be upheld even if passed.
“So, the upshot of the court’s ruling is that the people of Mississippi will have to vote on the initiative without knowing whether it is a proper use of the initiative,” Linton explained. “If the measure is approved, it can still be challenged on state constitutional grounds, i.e., that it’s an improper use of the initiative process, and I would still expect the court to strike it down on that ground.”
That’s not the only way in which the amendment might be struck down in court — assuming state voters had approved it. Lower courts, after a vote, would be expected to overturn the amendment as an unconstitutional challenge to Roe v. Wade. Some pro-life groups oppose the amendment because they say it will head to the Supreme Court, which will strike it down and add to the pro-Roe v. Wade case law upholding unlimited abortions. Knowing that, they say a better strategy is supporting pro-life Senate candidates and replacing pro-abortion President Barack Obama — paving the way for new Supreme Court justices who could overturn Roe or uphold such an amendment.
The court may have also decided to uphold the personhood amendment but declare that it does nothing to ban abortions and merely functions as a statement of position by the state — thus gaining unborn children no legal protections.
The full text of the amendment reads: “Be it enacted by the People of the State of Mississippi: SECTION 1: Article III of the constitution of the state of Mississippi is hereby amended BY THE ADDITION OF A NEW SECTION TO READ: SECTION 33: Person defined. As used in this Article III of the state constitution, “The term ‘person’ or ‘persons’ shall include every human being from the moment of fertilization, cloning, or the functional equivalent thereof.”