Personhood Amendment in Mississippi Tied in Final Poll

State   |   Steven Ertelt   |   Nov 7, 2011   |   12:07PM   |   Jackson, MS

The battle over the personhood amendment in Mississippi will go down to the wire tomorrow in what is expected to be a close outcome, according to a new poll sponsored by Public Policy Polling.

The amendment would define 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 don’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.

The new PPP poll shows the amendment (Initiative 26) could go either way — with 45% of voters supporting the amendment and 44% opposed. Another 11 percent of Mississippi voters re undecided still, according to the new survey released Monday.

The survey finds 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.

However, pollster Tom Jensen says the voters are most undecided and have yet to make up their minds are the ones who more likely to vote against the proposal, making him believe late-breaking voters could send the amendment to its defeat tomorrow.

“The good news for those opposed to the amendment is that 11% of voters are undecided and their demographics are 58% women, 54% Democratic, and 42% black- those still on the fence disproportionately belong to voter groups that oppose the amendment,” Jensen said. “That suggests when those folks make up their minds the proposal could be narrowly defeated.”

“The groups trying to defeat the proposed Personhood amendment in Mississippi have had momentum on their side over the last few weeks,” added Dean Debnam, President of Public Policy Polling. “There is a very real chance now that the proposal will be defeated.”

The survey also shows younger voters are more likely to support Initiative 26 — with those 18-29 supportive on a 44-40 percent margin while those 30-45 oppose it 48-41 percent, those 46-65 oppose it 49-41 percent, and those over 65 are supportive 53-37 percent.

Supporters of John McCain in 2008 support the personhood amendment 61-30 percent while backers of Barack Obama in 2008 oppose it 64-22 percent.

PPP surveyed 796 likely voters from November 4th to 6th and the margin of error for the survey is +/-3.5%.

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 that paved the way for Mississippi to become the second state, following failed votes in 2008 and 2010 in Colorado, to consider the personhood amendment. 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 they 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, that means 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 will strike down the personhood amendment after the vote under a post-vote lawsuit, Linton believes it won’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 approve 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 also decide 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.

In the Supreme Court’s opinion in Webster in the 1980s, Missouri has approved a statute saying “the life of each human being begins at conception” and “unborn children have protectable interests in life, health, and well-being.” The statute required that all Missouri state laws be interpreted to provide unborn children with rights equal to those enjoyed by other persons.

The United States District Court for the Western District of Missouri struck down that provision and the abortion limits, the United States Court of Appeals for the Eighth Circuit affirmed and ruled they violated Roe.

The Supreme Court then ruled that it did not need to consider the constitutionality of the law’s preamble, defining personhood at conception, as it was not used to support any abortion laws that conflicted with Roe. Chief Justice William Rehnquist wrote the decision and Justice Anthony Kennedy joined in the opinion (meaning he will likely rule the same way on any new case involving the amendments).

Ultimately, the Supreme Court upheld the personhood language Missouri used decades ago but did not allow it to ban — or even limit — any abortions.

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.”


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