To be, or not to be … a person

I am honored to have a wonderful guest post today from Maggie McLetchie, staff attorney and Interim Southern Program Director of the ACLU of Nevada. Here, she breaks down the latest Richard Ziser garbage and helps demystify the legalese behind it all.

What’s the big deal about “personhood”?

On its surface, the “Personhood Initiative” recently introduced by Richard Ziser of defense-of-marriage fame does little to nothing.  It proposes an amendment to the Nevada constitution very succinctly stating:

In the great state of Nevada, the term ‘person’ applies to every human being.

So what’s the big deal?  People are human beings, aren’t they?

The very problem with the amendment, though, is its very apparent innocuousness. It is deceptively simple.  First of all, the law is a tricky thing and “person” is a term that has legal meaning throughout Nevada law.  Thus, it is no small thing to expand or change its definition.  And while the language of the amendment itself is simple on its face, the “description of effect” included with the amendment is far less so.  If the initiative passed, the description of effect would be used to interpret the meaning of the amendment and would be taken as reflective of the intent of voters.

That’s no laughing matter, as the description purports to do a whole array of things.  Some things included in the description make no sense and others violate Supreme Court precedent.  Most centrally, the petition defines human being as any one “possessing a human genome specific for an individual member of the human species.”

While not worded exactly the same, “Personhood” amendments have been introduced in other states with the express goal of undercutting a women’s constitutional right of choice and right to access certain forms of birth control.   And Mr. Ziser has made clear that it is his goal in Nevada is to protect life from conception until death.  Of course, the Nevada Personhood Amendment would be unenforceable as a bar on abortions under Roe v. Wade. The right to access birth control is likewise protected by Supreme Court precedent.  And, despite statements by Mr. Ziser to the contrary, the United States Constitution is binding in Nevada.  Put simply, voters in Nevada cannot vote away individual rights protected by the United States Constitution.

Which brings us back to the same question: so what’s the big deal?  OK, here’s the problem: protecting constitutional rights require vigilance and a woman’s right to legal abortions and birth control is by no means secure.  Recently, in its decision in Gonzales v. Planned Parenthood Federation of America and Gonzales v. Carhart, the Supreme Court undermined some central assumptions and protections implicit in Roe.  To name one, the decision questioned the ability of women to serve as full moral actors.  In justifying limitations on partial birth abortions, the Supreme Court in part relied on the fact that women may make decisions that they later may regret – and found that protecting women from the consequences to themselves of their decisions was a valid role for the state.

And it is no secret that the Pro-life movement is dead set on getting Roe overturned.  If that should happen, Nevada could be free to ban abortion.  I was recently asked by Jon Ralston on Face-to-Face with Jon Ralston about my thoughts on how likely that was.  I am no political analyst, and I really don’t know.  But it is scary enough a possibility that it must be avoided.  Further, passing the Personhood Initiative could also have collateral effects: like worsening an already dire lack of sex education in schools across Nevada by demonstrating to our political leaders that Nevada voters oppose abortion and the birth control pill, and thus we should pretend that they don’t exist.

The Personhood Initiative reminds us that in no area are our constitutional rights set in stone.  And while history has seen revolutionary steps to protect our rights – Brown v. Board of Education and Roe itself come to mind – we have also seen a diminution of rights and constitutional protections in some areas.  To give a marked example, after 9-11, fundamental constitutional protections such as requiring probable cause and warrants went out the door in the name of national security.  More generally, over the past decade, the Fourth Amendment has taken such a beating that it now serves as a very flimsy safeguard against over-stepping by law enforcement.

On the federal level, judges hold great power to change the contours of our rights and to set the scope of checks on governmental power.  In Nevada, voters too hold power through the initiative process. Thus, at the very least, initiative petitions cannot be misleading.  The description of effect included with the Personhood Initiative is such a jumble and purports to do so much – from protecting people from death panels to imposing new obligations on the state – it is completely misleading. Further, while the ACLU of Nevada supports fair access to the ballot initiative process, ballot initiatives must provide notice to voters of the impact of what they vote for. Because the language proposed to be added to the Nevada Constitution is deceptively simple, the Personhood Initiative fails to do that.  Finally, the Personhood Initiative raises questions that are central to democracy in Nevada: to what extent can and should voters – even when they are in the majority – be allowed to change the central nature of our state constitution?  Are our fundamental rights subject to majority vote?

It is the importance of these issues and questions, and not our support for privacy and reproductive rights alone, that has led the ACLU of Nevada to get into the fray of debate on the Personhood Initiative.  From our point of view, the Personhood Initiative is not only unconstitutional and a legal mess, but it is completely misguided if its proponents are seeking to reduce abortions.  Rather than interfering with the most personal of decisions and the bodily and moral autonomy of women, we should all work together to improve sex education in Nevada and reduce unwanted pregnancies.  Given that we have one of the highest rates of teen pregnancy in the nation, such steps would do much more to prevent abortion than passing a constitutional amendment that would be unenforceable – at least for now.

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