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Sunday, October 30, 2011

Court challenges of i26 in Mississippi

The full text of i26 is :

SUMMARY: Initiative #26 would amend the Mississippi Constitution to define the word “person” or “persons”, as those terms are used in Article III of the state constitution, to include every human being from the moment of fertilization, cloning, or the functional equivalent thereof.
Entire amendment :
“Be it Enacted by the People of the State of Mississippi:
SECTION 1. Article III of the constitution of the state of Mississippi is hearby amended BY THE ADDITION OF A NEW SECTION TO READ:
Section 33. Person defined. As used in this Article III of the state constitution, “The term ‘person’ or ‘persons’ shall include every human being from the moment of fertilization, cloning or the functional equivalent thereof.”
The petition can be found here.

The first issue the initiative will run into - if passed - will be a Mississippi Constitution problem.  I've quoted the pertinent sections :
ARTICLE 3

 BILL OF RIGHTS

SECTION 5.        Government originating in the people.


SECTION 273.
(1) Amendments to this Constitution may be proposed by the Legislature or by initiative of the people.
(5) 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;
We can see that Section 1 Article 3 is the "Bill of Rights." We can also see that the initiative process shall not be used to modify the Bill of Rights.  Looking at the amendment text, initiative 26 is constitutionally illegal.

What does this mean?  The first taxpayer funded court challenge will be based on this legal conflict. 26 can not stand because it is illegal to use the ballot initiative process to alter the Bill of Rights.  There will be no basis for further court challenges that the authors of this amendment seek.  It will be struck down based on ballot initiative law rather than anything to do with abortion.

Lets say that the level of corruption in the Mississippi Court System is high enough that a judge would totally ignore our constitution and let the ballot initiative stand and go into effect. What next?

The next issue is that Federal Law supersedes State Law.  i26 will not outlaw abortion because the Roe vs. Wade decision protects a woman's right to medical privacy.  In other words, the initiative will not achieve the goal of the authors - it will not, can not, outlaw abortion.  This is the conflict that the authors are seeking to get to.  They want Mississippi taxpayers to fund their challenges to federal law.

So, if the amendment can not actually outlaw abortion without the expensive court challenges, what can it actually do?
  • Outlaw Birth Control methods that may cause the fertilized egg to be unable to implant. ie, most of them.  Pending, of course, expensive court cases.
  • Reduce or Eliminate In Vitro Fertilization procedures. I believe the wording of the proposed amendment actually targets IVF.
  • Encourage the investigation and prosecution of women who have miscarriages.
  • Prevent treatment for ectopic pregnancies or other serious issues.
AMENDMENT :
The Mississippi Supreme Court refused to rule in a suit brought by the ACLU and Planned Parenthood to block the initiative from being on the ballot.  This judgment said that a court could not get involved until the initiative passed.
"We cannot invade the territory of the legislature or the electorate to review the substantive validity of a proposed initiative, and thereby, we will honor the maxim embodied in the constitutional mandate of separation of powers," said Justice Randy Pierce for the court.
He said any challenges to the constitutionality of such statutes can come only after they are enacted or approved by voters. (source)
While I think that ruling was stupid, the courts were technically correct.  The corruption that allowed the initiative on the ballot was that of Delbert Hoseman as the Secretary of State.  He should have not allowed it due to the restrictions that it violates. Unfortunately, there is no challenger for his position.