11/08/2011 12:23 pm ET Updated Jan 08, 2012

Can a State Outlaw Abortion?

The statement at issue:

"Even opponents of abortion rights who would like nothing more than to give the courts an opportunity to reverse Roe v. Wade may find this amendment a bad vehicle for doing so.... By endorsing a ballot initiative that is deeply ambiguous, pro-life constituencies could be inviting courts to read the amendment in a way that sidesteps the very constitutional question they want to force."

Comment by I. Glenn Cohen, an assistant professor of law at Harvard, and Jonathan F. Will, an assistant professor of law at Mississippi College, in an article Oct. 31 in the online edition of The New York Times, "Mississippi's Ambiguous 'Personhood' Amendment."

We checked the Constitution, and...

Mississippi's "Initiative 26," the "Personhood Amendment" that goes before the voters of the Magnolia State today, appears doomed under the Constitution -- unless the membership of the Supreme Court changes significantly by the time such a measure reached the Justices, or there is a change of mind on the bench. The sponsors of the amendment seem prepared to accept the risk as of right now, because they are counting on a change on the highest court by the time Initiative 26 could reach it.

The "Personhood Amendment" is brief, but it has portents for legal complications for reproductive health well beyond its impact on abortion and, as Professors Cohn and Will have suggested, may raise serious questions about what it actually means. The measure states that, in the Mississippi state constitution, "the term 'person' or 'persons' shall include every human being from the moment of fertilization, cloning or the functional equivalent thereof."

Similar proposals have been defeated twice in Colorado, but a handful of other states are considering putting forth the same kind of ballot measure. Mississippi is the only place where it is being tested before the voters this year. It went on the ballot after the state Supreme Court on September 8, in the case of Hughes v. Hosemann, said it had no authority to pass upon the validity of the measure until it had gone into effect. "It is not within the province of this court to render advisory opinions," it said.

If the voters approved Initiative 26, it is a certainty, its critics say, that it will be challenged immediately, most likely in federal, not state, court. Such a case would not be likely to reach the Supreme Court for at least two years.

Of course, the membership of the Court has changed markedly since the last time the Court ruled directly on a plea to overrule the Roe decision, rejecting that plea in Casey v. Planned Parenthood of Southeastern Pennsylvania. Only three Justices who took part in that 5-4 ruling on June 19, 1992, remain on the Court now. They are Justice Anthony M. Kennedy, who was in the majority, and Justices Antonin Scalia and Clarence Thomas, in dissent.

It is significant, perhaps, that Justice Kennedy is generally credited with crafting these famous opening lines of that ruling reaffirming the basic Roe conclusion that a woman has a constitutional right to end a pregnancy in its early stages: "Liberty finds no refuge in a jurisprudence of doubt." In Casey, the Court also did not question Roe's conclusion that it is not for the courts to decide "the difficult question of when life begins."

Though political and cultural doubt about Roe surely remain, in some circles, there has been no sign that the Court has ever been ready to reconsider its attempt to end the constitutional doubt. The Casey decision came 19 years after Roe, a 1973 ruling. Now, in 2011, the time since Roe has doubled, to 38 years.

Although the Court's last major ruling on abortion rights, the 2007 decision in Gonzales v. Carhart, upheld a major new federal law to curb abortions, that ruling cast no doubt on Roe's core holding that there remains a right to terminate a pregnancy in the early stages. Kennedy wrote that opinion, joined by four Justices who remain on the Court with him now: Chief Justice John G. Roberts, Jr., and Justices Scalia, Thomas and Samuel A. Alito, Jr.

Two of the dissenters then -- Justices Breyer and Ginsburg -- remain. New to the Court since then are Justices Elena Kagan and Sonia Sotomayor who, one might assume, would not vote to overrule Roe.

The lingering question, if the 2007 majority in Gonzales holds the key votes on a future test of a measure like Initiative 26, is whether Justice Kennedy would be willing to yield to the constitutional doubts he sought in 1992 to put to rest.

This post first appeared on Constitution Daily, the blog of the National Constitution Center in Philadelphia.