Constitution Check: Will voters decide the fate of the “Personhood Amendment”?


Lyle Denniston looks at the prospect of potential state anti-abortion amendments passing constitutional muster in a Supreme Court ruling.

The statements at issue:

“The proposed anti-abortion measure called the Personhood Amendment won’t be on the ballot, Colorado Secretary of State Scott Gessler announced Wednesday morning. It fell short of the required number of petition signatures by 3,859, he said.”

– Electra Draper, reporter for The Denver Post, in a story on the newspaper’s web site August 28.

“We have hired an election attorney. We are confident we will be on the ballot in November. We’re certain of it.”

Jennifer Mason, spokeswoman for the organization Personhood Colorado, as quoted in Ms. Draper’s Denver Post story.

We checked the Constitution, and…

America’s basic document gives the states a large measure of control over their own elections, so those who seek to put ballot measures before the voters are not often successful when they try to enlist the courts to salvage a measure that officials have found did not make the cut–as Colorado officials appear to have done on the proposed “Personhood Amendment.”

If the state’s chief election officer is right that “Initiative 46” did not have enough voter signatures to put it to a test of the voters in November, that would be the seventh state this year where such attempts have faltered.

And, in an eighth state, Oklahoma, the state Supreme Court in April barred “Initiative 395” from the ballot there even before proponents could start gathering signatures in support of it. Colorado voters twice before had explicitly voted down such a measure, as did Mississippi voters last year.

Across the country, those who favor putting into state law or state constitutions full legal protection for a human being “from the beginning of development of that human being” have been pressing that issue as a priority for the ongoing “right to life” movement.

Their efforts got explicit endorsement on Tuesday in the national Republican Party’s approval at the Tampa convention of a fetal personhood plank in the platform, and Republican presidential nominee Mitt Romney is on record in favor of the idea.

Even if, however, a court does clear the way this year for a ballot test of the Amendment in Colorado, that proposal has a long way to go before it could have an actual impact on peoples’ lives and on the lives of pregnant women contemplating abortion. For one thing, the measure runs flatly up against a still-intact view of the Supreme Court: that the Constitution recognizes a “person” only after the moment of live birth.

When Oklahoma’s Supreme Court blocked “Initiative 395,” it concluded that “the Supreme Court has spoken on this issue. The measure is clearly unconstitutional pursuant to Planned Parenthood v. Casey–the U.S. Supreme Court’s 1992 decision mostly reaffirming the basic abortion rights ruling in 1973, Roe v. Wade. “The states,” the Oklahoma court added, “are duty bound to follow [the Supreme Court’s] interpretation of the law.”

In July, the sponsors of the “Personhood Amendment” in Oklahoma asked the U.S. Supreme Court to review their state court ruling against “Initiative 395.” The challenge is primarily an attempt to gain a right to put that measure on the ballot, but the legal documents are framed in a way that the lawyers hope will persuade the Justices to reconsider the Casey decision. The sponsors argued that defining “person” as their measure does would not be unconstitutional.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

The prospects of that challenge succeeding seem slim at best. The Casey decision was a 5-4 ruling, and of those nine justices, six have since left the court or died–four from the majority, and two from the dissent.

But the fact that Justice Anthony M. Kennedy remains the only member of that majority still serving on the court may be crucial: he was one of three justices who together fashioned the majority ruling, and he has shown no sign of retreating from its basic conclusion.

It appears that, if he has not changed his mind, he almost certainly would be able to pick up four votes of justices who have joined the court since Casey: Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. The two dissenters in Casey still on the Court–Justices Antonin Scalia and Clarence Thomas–might well pick up the support of Chief Justice John G. Roberts Jr., and Samuel A. Alito Jr., but that, of course, would not be enough.

It would take the votes of only four justices to agree to review the Oklahoma decision on the “Personhood Amendment,” but it is doubtful that four would do so unless there were some reasonable prospect of being able to gather a majority for a final ruling.

The outlook, then, is that the only chance for a “Personhood Amendment” to become a reality is for a proposed “Human Life Amendment” to be added to the U.S. Constitution first. It is doubtful that 38 states would ratify such a change, even if it did emerge from Congress.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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