Wednesday, November 9, 2011

Why Personhood Should Have Never Been on the Ballot

In case you didn't notice, yesterday was election day across America.  Last night's election results seemed to indicate a repudiation of the far reaching conservative state-wide initiatives that have been implemented and proposed by the very Republican state governments that were elected by storm during the 2010 mid-term elections. Notably, Ohio voters, who voted in Republican Governor John Kasich over Democrat Ted Strickland 49% to 47% in 2010, soundly repealed Kasich's law that restricted collective bargaining rights for state unions by a measure of 60.6% to 39.4%.1   Meanwhile, in Mississippi a more peculiar state-wide initiative was on the ballot: "Personhood."  The proposed Personhood Amendment would have defined life “to include every human being from the moment of fertilization, cloning or the functional equivalent thereof.” In other words, all abortions, morning after pills and certain forms of contraception would have been the legal equivalent of manslaughter.  Although the amendment was defeated in Mississippi by a measure of 58% to 42%, the fact that 42% of the voters in a state in America felt that the government should step in and regulate a woman's right to control her own body is a bit disconcerting.  The fact of the matter is, the Personhood amendment should have never been on a state ballot in the first place because a woman's right to seek an abortion is a federally protected Constitutional right which trumps state law.

If you look in the Constitution regarding the issue of abortion, you will not find the word "abortion" or the words "right to privacy" anywhere in the document.  What you will see, however, is this little thing known as Article III.  Article I establishes Congress, Article II establishes the President, and Article III establishes the Supreme Court.  In pertinent part, Article III provides the following:

"The judicial Power of the United States, shall be vested in one supreme Court"

What this means in layman's terms is that although Congress writes the Constitution, the Supreme Court is the only branch of government that has the "judicial power" to tell us what exactly the Constitution means.  See Marbury v. Madison, 5 U.S. 137 (1803) (holding that Congress cannot pass laws that are contrary to the Constitution, and also holding that it is the role of the Judicial branch to interpret what the Constitution permits).  So when the Supreme Court interprets the Due Process Clause of the 14th Amendment ("no state shall...deprive any person of...liberty...without Due Process of law") to mean that a woman has a Constitutional Right to Privacy which allows her to seek an abortion if she so chooses, then that is the law of the land.  If you don't like it, urge your Senator and Representative to pass a Constitutional Amendment to override the Supreme Court's decisions in Roe v. Wade and Planned Parenthood v. Casey.  Until that day, however, these two landmark Supreme Court cases unequivocally establish the Constitutional right for women in all 50 states to legally choose an abortion today.

Its important to note that when we say "Constitutional right" we mean the federal constitution of the United States, not to be confused with your state's local constitution.  This is important because the U.S. Constitution makes it clear that whenever the U.S. Constitution bumps heads with a state law, the state law must bow down.  This is known as the "Supremacy Clause":

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby.  - U.S. Const., Art. VI, Cl. 2.
To recap: (i) the Supreme Court interprets federal laws, (ii) the Supreme Court has interpreted that women have a federal right to an abortion, and (iii) the Supreme Court's federal interpretations trump state law.  Applying these basic principles to the current situation in Mississippi gives us a State law against abortion which would have been dead on arrival.  If it had passed last night, it would have only existed on the books for the few days that it would have taken for a federal judge to actually read and approve the first of several complaints.

Personal feelings on abortion certainly run high on both sides of the issue, and for good reason. There are good arguments to be made on each side.  Nevertheless, regardless of whether we personally agree with abortion or not, the fact remains that the federal government has declared it to be legal in this country.  Therefore, no state has the right to change that.  Mississippi's Personhood amendment should not have even been up for debate.

1 - Ohio voters also voted to exempt themselves from "ObamaCare's" individual mandate.

Questions:
1. What is your take on the concept of Personhood in general?
2. Was this a strategic effort to possibly challenge Roe v. Wade at the SCOTUS level or simply an example of short-sighted overreaching?
3. On a related note, what do last night's elections say about the past 2010 and future 2012 elections?
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