It appears to be all over but the cryin’ for supporters of the Mississippi "egg-as-a-person" initiative to ban abortion. RH Reality Check has discovered that a unique provision in the state’s Constitution prohibits modifying the Bill of Rights by voter referendum.
A fact known by the Personhood campaign and ignored for political reasons.
"The Mississippi Constitution is clear," said Jennifer Dalven, deputy director of the ACLU Reproductive Freedom Project. "You can’t change the Bill of Rights through the citizen initiative process."
Dalven also confirmed that the proposed ballot measure — which seeks to change the definition of a person to include a fertilized human egg — fails the constitutional law test in two ways: It expressly amends the Bill of Rights and it reduces the rights of women to control their medical decisions.
"Personhood" activists have admitted their primary goal is to ban abortion services by challenging Roe v Wade on 14th Amendment grounds. They claim a fertilized egg should be defined as a "person" with civil rights and due process protections.
However, if passed, the controversial state ballot measure would also have far-reaching consequences for family planning services, fertility treatments and embryonic stem cell research. Even some of the most stalwart arch-conservative anti-choice movement leaders reject the "personhood" argument.
Yet, neither the Mississippi Secretary of State nor Attorney General put the kibosh on the unlawful "Definition of a Person" amendment when it was submitted Nov. 22, 2008 for official approval.
Jan Schaefer, spokesperson for Mississippi Attorney General Jim Hood, deflected any responsibility for serving as a watchdog for the initiative process.
"The certificate of review issued by the AG does not constitute an endorsement of the Constitutional, statutory or substantive validity of the proposed initiative," said Schaefer.
The Secretary of State produces a lengthy Constitutional Initiative in Mississippi: A Citizen’s Guide [PDF] that plainly states the ballot limitation on page 3:
The initiative process cannot be used for any of the following:
1. To modify the Bill of Rights. [Emphasis by the Secretary of State]
Sec. Delbert Hosemann did not return calls for comment about how a measure that violates the initiative rules could get so far in the process and at what cost to county clerks charged with certifying tens of thousands of signatures.
For its part, Personhood USA, the official multi-state campaign by anti-choice activists to push the ballot measures, shrugged off the latest hitch in its efforts. The national group’s co-director Keith Mason admitting knowing that the ballot measure didn’t pass legal muster but pushed the amendment forward anyway.
"There’s multiple reasons and facets to doing an initiative and it’s not necessarily to pass one," he said.
Mason claims the group has 100,000 petition signatures and would use that momentum to press forward with a statehouse bill as a "gun behind the door for legislators" even if the measure isn’t certified for the ballot.
"It’s not in their best interest to not be pro-life," warned Mason, a former Operation Rescue Truth Truck driver and veteran of the first-in-the-nation ballot campaign in Colorado that went down to a flaming 73-27 defeat in 2008.
Still, our discovery of the ballot’s unconstitutionality is just one of the more recent snags for the Mississippi group led by Les Riley, a tractor salesman and father of 10 who has raised a scant $11,290 for the cause.
The local affiliate, Personhood Mississippi, filed a last ditch federal lawsuit Feb. 4 seeking to extend the deadline to collect and certify the required 89,000 petition signatures to make the November ballot. The group has been circulating petitions for a year but has yet to submit thousands of voter signatures to the county clerks for verification by Feb. 13, a process which can take several weeks. Two prior petition efforts in 2005 and 2007 failed to win enough support to get the question before voters.
The group is being represented in federal court by the Liberty Counsel, a conservative Christian pro bono law firm founded by televangelist Rev. Jerry Falwell. Personhood attorney Stephen Crampton argues that a 1996 opinion on petition certification for citizen initiatives by then-Attorney General Mike Moore contradicts the state constitution provision for a 12-month signature collection process.
Current AG Hood is defending the state in the suit and agrees with his predecessor’s interpretation of the law. But it all appears to be for naught since the ballot is likely to be struck down for violating the Bill of Rights amendment provision even if it manages to qualify its petitions.
The only option left to anti-choice activists is to press the Mississippi legislature to introduce its own constitutional amendment as a referendum, which is allowable under state law. However, a legislatively-referred initiative would need to pass both chambers by a super majority two-thirds vote before it can be placed on the ballot.
According to Nsombi Lambright, executive director of the ACLU of Mississippi, she isn’t detecting any enthusiasm among state lawmakers to walk into a political buzz saw as contentious as abortion. Especially as lawmakers grapple with far larger problems, including a nearly $500 million budget deficit and a 10.3 percent state unemployment rate.