I earlier shared my thoughts on the ambiguity of the Mississippi personhood amendment. In this blog post I focus on the question of its constitutionality.
While I have seen state courts apply the constitutional avoidance canon to state statutes, I have never seen it applied to the meaning of the a ballot initiative, but it is possible the courts will in any event resolve the question I discussed in my last post of whether the Amendment is self-executing in such a way that will allow the courts to avoid having to face a possible conflict with the federal constitution.
If not, and the ambiguity of “fertilization” is resolved to cover everything from the moment that sperm penetrates egg, the amendment (if self-executing) may criminalize some forms of birth control, destruction of excess embryos fertilized as part of IVF, stem cell derivation, and abortion (pre and post-viability).
Let me take those contexts one by one.
As-applied to prohibit pre-viability abortions, the amendment obviously conflicts with Roe and Casey. Of course, some supporters of this amendment know that and want to offer the Supreme Court an opportunity to reverse these decisions, but I think the fetal pain abortion bans I have written about (with Sad Sayeed) elsewhere in other states are actually a more likely way to get the Court to revisit the issue, although we ultimately think they too are unconstitutional for the reasons we set out in that article.
What about the application of the amendment to criminalize destroying embryos fertilized for IVF but discarded when not needed – that is to force all embryos to be available for embryo adoption? Here the issue will turn on whether there is a federal constitutional right not to procreate (or as I prefer to put it rights not to procreate). I have written about those issues in the context of courts looking for such a right to resolve embryo disposition disputes. In that article I expressed some doubt as to whether there exists a right not to be a genetic parent when unbundled from unwanted gestational and legal parenthood, but I also raised some arguments as to state action and waiver which seem less relevant in this context. There is also a practical question of whether the ban may be evaded by engaging in indefinite freezing rather than either destruction or adoption.
As applied to a ban on stem cell derivation, I am unsure there is a federal constitutional problem, especially if Abigail Alliance (full disclosure, I represented DOJ in this matter) is accepted as stating the law in the are. If anything, because stem cells are further away from therapeutics at the moment, if anything the argument seems weaker than that in Abigail Alliance.
As applied to certain forms of birth control that terminate pregnancy after the sperm penetrates the egg, I am less sure of my view. Following Griswold, Carey, and Eisenstadt (if read as due process not equal protection), there seems to be an infringement of a fundamental right. However, perhaps the state could argue the availability of pre-fertilization forms of birth control means such a ban could survive strict scrutiny. One can think of this as the birth control equivalent to the most recent Carhart decision on the partial birth abortion procedure, that the state may be permissibly rule out some forms of contraception as long as some remain open. That said, so much of the Carhart opinion was based on Kennedy’s views about women regretting their abortion decisions, which my colleague Jeannie Suk among others has written about, that one might think the opinion very much limited to abortion and even then not something to bank on.
Thus on my reading the constitutionality would vary dramatically based on as-applied context. Still, these thoughts are very tentative and I would love to hear what others think.
Posted by Glenn Cohen on November 1, 2011 at 10:04 PM
Comments
Thanks for the clarification! Much appreciated.
Posted by: Tanner Spracklen | Nov 9, 2011 2:48:38 PM
Yes, Article III is the Bill of Rights of the Mississippi Constitution. Andrew is citing the provision in the constitution that prohibits using initiative and referendum to modify or alter Article III. Article 15 has numerous provisions regarding how the initiative process is to operate.
Posted by: David Case | Nov 5, 2011 1:35:45 PM
As I read David, he was saying that the Bill of Rights is Article 3, not that the prohibition is located in Article 3. The prohibition is in Article 15, Section 273(5)(a): “The initiative process shall not be used: (a) For the proposal, modification or repeal of any portion of the Bill of Rights of this Constitution”.
Of course, IANAL and this is the first time in my life that I’ve looked at the Mississippi Constitution, so there could be subtleties I’m missing. But I think that’s at least the provision in question.
Posted by: Andrew MacKie-Mason | Nov 4, 2011 2:37:09 PM
David, having just read Article III of the Mississippi Constitution in its entirety, I see no “express” prohibition on modifications to the state’s Bill of Rights via referendum.
Posted by: Tanner Spracklen | Nov 4, 2011 2:26:51 PM
If a mother eagle removes eggs from her own body, is the government fining her? If so, I completely understand your analogy.
Posted by: Andrew MacKie-Mason | Nov 4, 2011 3:56:06 AM
Maybe you can explain why even though the eagle is no longer an endangered species, its eggs are still federally protected while they’re still in the mother eagle; once they are laid; through the 35-day incubation period and beyond through hatching. In fact, even the nonliving eagle egg shell is protected by the federal law. We’re talking a $100,000 fine! Shouldn’t a human baby have at least the same protection under the law?
Posted by: Lifeisbeautiful | Nov 3, 2011 9:35:34 PM
Thanks David, that is very very helpful. This is why it is good to get the views of our colleagues with deep knowledge of Mississippi law! Even if the Mississippi court never reaches the issues, electoral success there may prompt other states without such state constitutional law safeguards to try and pass something similar, which will of course raise these federal constitutional law questions anew.
Posted by: I. Glenn Cohen | Nov 3, 2011 3:22:38 PM
The Mississippi Constitution expressly prohibits proposals, modifications or amendments to the Bill of Rights (Article III of the state constitution) through initiative and referendum. Initiative 26 expressly purports to amend Article III of the state constitution, so the initiative language is unconstitutional under the state constitution on its face. There is no ambiguity on that whatsoever.
The Mississippi Supreme Court declined to block the amendment in the pre-vote challenge on ripeness grounds. The majority said unless and until the initiative is passed by the voters the court has no authority to rule on the issue. If the initiative passes by the voters, it will be immediately challenged and I cannot understand how any result other than the court striking it down is possible. Thus, I can’t see why the court would ever get to any federal issues regarding the amendment. The MS S. Ct. case declining to block the amendment pre-vote on ripeness grounds is Hughes v. Hosemann, 68 So.3d 1260 (Sept. 2011).
Posted by: David Case | Nov 3, 2011 2:43:55 PM
Thanks Matthew. I am not an expert on Mississippi Constitutional law, so I will defer to those who are, but as I understand it the Mississippi Supreme Court rejected attempts to block the amendment going on the ballot, http://www.mssc.state.ms.us/Images/Opinions/CO71836.pdf. Now it may be the kinds of objections you raise were not raised in that case, and the Mississippi Supreme Court late interprets Mississippi constitutional law to block the amendment. If not, though, which seems likely given their prior decision not to block the amendment, then the federal constitutional issues strike me as quite salient.
Posted by: I. Glenn Cohen | Nov 3, 2011 1:59:01 PM
I think the whole thing is irrelevant, because I’m pretty sure the initiative is unconstitutional under the Mississippi Constitution. Article 15 prohibits the use of the initiative process to alter the Bill of Rights or to amend Article 3; Initiative 26 does both.
Posted by: Matthew Reid Krell | Nov 3, 2011 1:52:21 PM
To me the first question is: what did Roe v. Wade hold? It obviously included in its balancing the interests of the unborn child, and a “personhood” amendment can either be seen as impermissibly short-cutting the Roe analysis, or else as (1) ANSWERING the analysis with a “the child has really strong rights here” or (2) informing but not answering the analysis, essentially correcting a mistake of fact the Roe court made.
If the personhood amendment is seen as (1) or (2), it is not clearly unconstitutional. (1) is almost a removal of jurisdiction, and (2) is just a law-applied-to-facts case that would be resolved on appeal.
Posted by: Anonymous | Nov 2, 2011 10:20:11 AM