Personhood is back

Another “personhood” ballot petition has been filed in Nevada. This is the language of the proposal to amend the Nevada Constitution:

“Article 1. Sec. 23. Unalienable right to life of every prenatal person is protected. The intentional taking of a prenatal person’s life shall never be allowed in this State. For the purpose of this section only, the terms ‘prenatal person’ include every human being at all stages of biological development before birth.”

A section that does not go on the ballot or into the constitution says defining the fetus in this way as a person would have “the effect of making illegal intention acts which kill such persons, including elective, surgical and/or chemical abortion and fetal homicide.” Whether that is an accurate characterization of the effect of the ballot measure would be determined if the measure was enacted by voters. That section of the petition is essentially a sales pitch. The actual amendment would almost certainly face court challenge if voters approved it.

The “personhood” movement draws its inspiration from a section of U.S. Supreme Court Justice Harry Blackmun’s majority opinion in the original Roe v. Wade ruling that recognized the right to abortion. In one section, Blackmun wrote:

“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.” (Emphasis added.)

However, some analysts have said that by lifting out and focusing on that one section of the opinion, anti-abortion activists have given the language meaning it does not have.

Clark Forsythe, an anti-abortion attorney, has written that personhood advocates missed Blackmun’s “ironic” tone and called the personhood claim an “urban legend” that cannot override the federal constitution.

In the conservative magazine National Review, Forsythe wrote, “The myth has been widely reported that Justice Blackmun stated in Roe that ‘we don’t know when life begins.’ Some state legislatures have come to believe that they can answer that question by asserting that life begins at conception. … [T]his is a classic case of reading the language out of context. 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.”

In 2009, an earlier effort to put “personhood” language into the Nevada Constitution was attempted. But the language proposed was so vague—and its sponsors so uncommunicative about their intentions—that it could have had effects well beyond abortion, such as affecting living will laws in Nevada. Even Nevada anti-abortion groups opposed that measure, and a court finally blocked it from the ballot.

That 2009 petition was sponsored by a group called Personhood Nevada. The new petition comes from a “Nevada Pro-Life Coalition,” not previously a known organization in the state. The new petition is written more clearly but still raises some questions, such as whether birth control would interfere with “prenatal persons.”

Nevadans voted 71.3 to 27.2 percent in 1990 to retain the state’s Roe-style abortion statute.