On Tuesday, Mississippi voters will decide whether to amend their state constitution to define a person as “every human being from the moment of fertilization, cloning, or the functional equivalent thereof.” The ballot initiative is the result of efforts by the anti-choice movement to ban abortion in the state and force litigation that they hope will give the Supreme Court an opening to ban abortion nationally.
Commentators have pointed to a number of issues with the amendment that are likely to cause problems for its anti-choice advocates, in addition to the obvious problems it poses for the pro-choice community. In a New York Times op-ed on Monday, Harvard Law Professor I. Glenn Cohen and Mississippi Law Professor Jonathan Will pointed out two of the biggest problems. First, the language of the amendment is significantly ambiguous and it is unclear what constitutes “fertilization” such that the amendment may ban in vitro fertilization (IVF) and some kinds of birth control, in addition to banning abortion. Second, the professors point out that it remains unclear whether the amendment is self-executing or not. If it is self-executing, it will have the immediate effect of changing the meaning of thousands of state statutes and regulations that include “person” in their language. If it is not self-executing, then the Mississippi state legislature would have to pass a law implementing the amendment.
If interpreted a certain way, what appears on its face as a measure to just ban abortion, could in fact reach much further into the private decisions women make concerning their own health and their choice to become pregnant at all. Medical professional associations like the Mississippi State Medical Association and the Mississippi Nurses Association have come out against the amendment because they fear the ambiguous language could mean common life-saving procedures often used for saving a mother’s life would be banned. In fact, the spokesperson for Personhood USA, one of the organizations working to garner support for the measure, indicated in a recent interview that the amendment did bar doctors from performing certain procedures to aid a woman who’s pregnancy was detrimental to her health. He also acknowledged that IVF and certain forms of birth control, including the morning after pill and possibly IUDs, would be banned under the amendment. Some opponents of the amendment have said it could even criminalize miscarriages or stillbirths. The claim might seem outrageous if not for the fact that Mississippi, and other states, have actually begun prosecuting women who have had miscarriages and stillbirths. The proposed amendment is likely to only add more legitimacy to such prosecutions.
Regardless of the looming threat of an extreme application of the amendment, the ambiguous amendment likely won’t help the anti-choice cause anyway, as Professors Cohen and Will point out in their op-ed. There’s no doubt litigation will ensue if Mississippi voters adopt the amendment. (The ACLU and Planned Parenthood lost in the lawsuit they brought to prevent it from getting on the ballot in the first place). In fact, anti-choice advocates likely want litigation to follow in the hope that it will reach the Supreme Court and the Court will use the opportunity to overturn its holding in Roe v. Wade protecting a woman’s right to choose. However, the Court would likely never reach the question. Whenever the Court must interpret an ambiguous law, if there is any reasonable interpretation that allows the Court to avoid addressing a constitutional question, the court will adopt that interpretation. (Brandeis’s concurrence in Ashwander v. Tennessee Valley Authority provides a good articulation of how the Court approaches constitutional issues in the cases it decides). The approach is taken, in part, based on the notion that the promulgating body could not have intended to create an unconstitutional law. If Mississippi adopts the proposed amendment and a court were to read it in line with that which proponents are advocating, it could raise serious supremacy clause issues since Roe v. Wade, Planned Parenthood v. Casey and their progeny have established a federal constitutional right to choose.
Under its constitutional avoidance doctrine, therefore, the Court would likely interpret the Mississippi amendment so it never has to reach any constitutional question – thus never considering whether it should overturn Roe v. Wade like many of the amendment’s proponents hope. One way to do so is to interpret the amendment as non-self-executing. A non-self-executing amendment does not automatically change the meaning of every reference to “person” in Mississippi laws and thus would not, upon adoption, immediately ban all abortions, some forms of birth control and the like. Instead, the Mississippi legislature would have to pass a law implementing the amendment, and if no such legislation exists the Court would be done with the inquiry. The Court could also find a way to read the language to narrow its reach so it doesn’t affect federal abortion rights, but that may prove more difficult. Under either scenario, the amendment, as currently worded, leaves significant doubt as to it’s effectiveness as a tool for overturning Roe v. Wade.
Of course, questions of the amendment’s constitutionality and effect on women’s rights would become moot should Mississippi voters decide on Tuesday to reject the amendment and instead decide to respect a woman’s right to make choices about her own body. Here’s to hoping they decide to do the latter.