More lawmaking by ballot

A proposed constitutional amendment seeking to stop abortion and end-of-life decisions has been filed with the Nevada secretary of state’s office.

In its entirety, the new law would read, “In the great state of Nevada, the term ‘person’ applies to every human being.”

The theory is that by bestowing “personhood” on fetuses, Roe. v. Wade—the 1972 decision that restored the right to abortion—would be invalidated. Similar measures are being circulated in several other states. In 2008, an early version was defeated in Colorado by 46 percentage points.

“It’s another attack on abortion rights for women. … Abortion might not be available at all,” said Nevada abortion rights leader Louise Bayard deVolo.

The measure was filed by Richard Ziser, a Las Vegas real estate figure and unsuccessful U.S. Senate and county school board candidate who organized the initiative petition campaign that placed a ban on same-gender marriage in the Nevada Constitution.

The “personhood” movement started because of language in U.S. Supreme Court Justice Harry Blackmun’s original opinion in Roe. This is that language:

“The appellee and certain amici argue that the fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant’s case [the case for abortion], of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the [Fourteenth] Amendment. The appellant conceded as much on reargument. On the other hand, the appellee conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.”

From this, the advocates of the personhood movement deduced that they could make the fetus a person by passing a law saying it is one—and thus overturn Roe.

Settling scientific disputes by lawmaking is rare, and it often generates mirth, as when the Indiana House of Representatives in 1897 passed a bill decreeing that pi is not 3.1416. But that’s not the only problem the Nevada initiative petition faces.

For one thing, it may not do what its sponsors seem to think it will do. It defines a human being as a person, but it doesn’t define a fetus as a person (or a human being, for that matter). The fetus, in fact, is not even mentioned.

There is some explanatory text in the petition—“ ‘Human being’ includes everyone possessing a human genome specific for an individual member of the human species, from the beginning of his or her biological development.” But that is not a part of the initiative petition that would go into the law. It’s basically a sales pitch.

By contrast, the 2008 Colorado personhood measure, Amendment 48, spelled out much more clearly what the amendment would do: “As used in sections 3, 6, and 25 of article II of the state constitution, the terms ‘person’ or ‘persons’ shall include any human being from the moment of fertilization.” (Italics added. Amendment 49 lost, 73-27 percent.) Even that language was criticized for its vagueness.

So if the Nevada petition is approved by voters, it could very well leave abortion law entirely unchanged. However, abortion supporters are still nervous about the language. One of them said, “The concern is that the [Nevada Supreme] Court would say, ‘The voters certainly didn’t mean to do nothing.’ ” That could lead to an interpretation of the initiative that is at variance with its plain language.

Another problem faced by the petitioners is that they are trying to use state law to override the U.S. Constitution. Roe v. Wade rests on the authority of the 14th Amendment.

Some anti-abortion leaders believe the personhood movement drains off resources that would be better applied to strategies that offer better opportunities for results.

Nevada Eagle Forum, Nevada Families and two other anti-abortion groups have issued a statement withholding support from Ziser’s initiative.

“Unfortunately, we believe the ‘Personhood’ initiative petition filed in Nevada with good intent will not protect the unborn or stop abortion. It is so vague and general that it may not even apply to abortion at all. In addition, a state personhood amendment cannot overturn Roe v. Wade.”

Ziser was not available for comment, but attorney Gualberto Garcia Jones of Personhood USA said that “there is nothing vague in stating that ‘all human beings shall be considered persons,’ just like there is nothing vague in stating that all persons have the inalienable right to life, liberty and the pursuit of happiness.”

The mild language employed by the Nevada anti-abortion groups toward the personhood initiative sponsors was not returned by Personhood USA, which accused Nevada Eagle Forum and the others of being “in league with Planned Parenthood …”

The text material on the petition says the measure would provide due process, but it doesn’t say for whom, and both state and federal constitutions already guarantee due process.

Clark Forsythe, an attorney for the anti-abortion group Americans United for Life and no fan of Blackmun or Roe, has written that personhood advocates are misreading Blackmun’s opinion by taking certain terms and phrases out of context.

“First, this is a classic case of reading the language out of context,” Forsythe wrote in an essay posted at National Review, the conservative magazine. “The phrase ‘suggestion of personhood’ in Blackmun’s opinion clearly refers to the earlier phrase ‘within the language and meaning of the Fourteenth Amendment.’ It does not mean “personhood” in any broader medical, moral, or legal sense. Blackmun is emphasizing the meaning of ‘person’ within the 14th Amendment.

“Second, no state can—by statute or constitutional amendment—change the meaning of the 14th Amendment to the federal constitution. The 14th Amendment can be changed only by another federal constitutional amendment or by the U.S. Supreme Court’s changing its interpretation of the 14th Amendment.”

The personhood advocates, Forsythe wrote, focused on Blackmun’s use of the term “without realizing that Blackmun is being ironic.”

In 1990, Nevada voters approved the state’s law on abortion, which essentially embodies Roe v. Wade, by 71.3 to 27.2 percent. Given that landslide vote and the opposition of both abortion supporters and abortion opponents to the personhood initiative, some activists suggest that the initiative’s sponsors don’t expect to win but are circulating the petition to aid political fundraising. Highly polarizing issues—flag burning, school prayer, evolution—are known to be useful in political fundraising, particularly direct mail solicitation.

Democrats, meanwhile, believe that if the initiative qualifies for the ballot, it will help draw their voters to the polls in a way U.S. Sen. Harry Reid—who will be at the top of the ballot—is not likely to do.

Of greater concern to some critics than the threat to abortion is the menace the initiative may pose to end of life procedures such as living wills. The textual material designed to sell the initiative reads that it would “prohibit … state intrusion in end of life decisions.” Living wills are authorized by Nevada Revised Statute chapters 449 and 450b.

Former state legislator Steve Coulter, who sponsored Nevada’s first living will law, said he would be concerned about the measure being used to interfere with end of life decisions.

“Why put something that vague in law when you don’t know what it’s going to do?” he asked. “Do we really need to roll the dice on yet another subject?”

He said he suspects that if the measure is seen as interfering with end-of-life decisions guaranteed by the law, the voters will reject it.