Could Mississippi initiative backfire?

Published in POLITICO

Anti-abortion leaders are warning that Mississippi’s broad ballot initiative in Tuesday’s elections could backfire if it winds up in the courts — because it could prompt courts to strengthen federal abortion protections if they have to revisit the fundamental question of whether the constitution protects the right to an abortion.

The personhood amendment would extend the rights of “persons” to the moment of fertilization under the state constitution, potentially banning all abortions.

Enacting such a provision is “futile” at best, said James Bopp, general counsel to the National Right to Life Committee, since the Supreme Court has “made it perfectly clear that they are not willing to overturn the right to abortion.”

Forcing the court to once again address the fundamental question of whether the constitution protects the right to an abortion could result in a “devastating defeat,” Bopp said, where the justices potentially solidify abortion rights or even expand them.

“Losing is not cost-free,” he warns.

Mississippi Gov. Haley Barbour, a vocal opponent of abortion, says he ultimately decided to vote for the personhood amendment. But earlier, he had said he was on the fence, in part because he was worried how it would fare in court.

“This may not be a good way to go to the Supreme Court,” he said on MSNBC last week. “It’s not gonna help, it may hurt.”

Litigators who support abortion rights regard the initiative as a chance to solidify their standing in the courts, though they are quick to say they would rather not have to take up such a case in the first place. The amendment not only runs afoul of Roe v. Wade by banning all abortions without exception, they say, it also is so broadly worded that it has unintended legal ramifications that no court would want to uphold.

“[If] you’re a person and there’s another person living inside you that’s entitled to full rights,” it opens up a whole new range of questions, said Kathryn Kolbert, who argued a 1992 case in which the Supreme Court upheld Roe v. Wade. For example, she asked, does that mean the fetus has a right to elected representation? Or standing in the courts to sue the mother if she endangers the fetus’s health?

“It’s helpful when it’s a law that’s absurd,” Kolbert said. “To me, it’s a litigator’s dream to get it struck down.”

Suzanne Novak, senior staff attorney at the Center for Reproductive Rights, said the fact that the amendment also can be interpreted to ban forms of contraception also strengthens the hand of abortion rights groups.

“We hope this doesn’t pass — it’s an extreme and dangerous proposal,” she said. But if it does, “it could and should provide the courts the opportunity to reaffirm … the [abortion] rights under Roe” as well as upholding another Supreme Court precedent guaranteeing access to contraception, she said.

But Clarke Forsythe, senior counsel of Americans United for Life, thinks both sides of the abortion debate are mistaken if they think the personhood amendment would set up a direct challenge to Roe — or even change anything in Mississippi.

Forsythe said his reading of the amendment is that it would only prohibit the state from violating a fetus’s rights as a “person” by funding abortion clinics, for example. It doesn’t do anything that would affect an individual’s ability to receive or perform abortions, he said.

“It’s not going to have immediate legal impact because the Mississippi government doesn’t promote abortion or fund it,” Forsythe said.

And without directly banning abortion, he said, “I don’t think the Mississippi amendment really conflicts with Roe v. Wade.”

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