Jackson Free Press

The Mississippi Supreme Court is setting itself up for a consistency clash if it votes in favor of a ballot initiative giving rights to microscopic human eggs.

Jackson attorney Robert McDuff argued before the full Mississippi Supreme Court June 6 that a ballot initiative giving rights to human blastocysts amounts to an illegal modification of the state constitution. Steve Crampton, general counsel for Lynchburg, Va.-based conservative non-profit Liberty Counsel, argued in favor of the Personhood Initiative.

The initiative joins several other ballot issues that Secretary of State Delbert Hosemann submitted to the state Legislature this year after the proposals received enough qualifying signatures to appear on the November ballot. A second ballot issue limits the state's use of eminent domain to claim privately owned property specifically for public projects like road construction. That second initiative would end the state's ability to claim private property to benefit for-profit corporations.

Both attorneys deny that the battle lines are over the legal definition of a human being, and neither asked judges June 6 to render a decision on that complicated issue.  Rather, the lawyers argued whether the initiative violates the very language of the state constitution.

Crampton told reporters that the ballot initiative merely clarifies existing state law by determining the point of human existence, while McDuff said the clarification itself is a modification.

"Installing a definition of a word is a modification. It is a proposal for a new portion of the Bill of Rights," McDuff said.

"When they define a word, for which the definition has not been previously settled, they are making a modification that the Mississippi Constitution requires be proposed through the Legislature and placed on the ballot by the Legislature rather than an initiative created with signatures gathered from around the state."

Justice Jess Dickinson told McDuff that the ballot initiative portion of the state constitution did not exist prior to the 1992 alteration of the constitution that created it. Dickinson suggested that if voters viewed the ballot initiative as illegally superseding the language of the constitution, that they could rightfully vote against it in November.

"If you say that people look to desire to place that limitation in the language ... (then) you have no reason to oppose this, because when this gets on the ballot, and the people vote, they're going to vote consistently with that desire they have, and they'll turn this (initiative) down," Dickinson said.

The court, which recessed, could be leaning in favor of allowing the Personhood Initiative if Dickinson's arguments prove to be the opinion of the majority, despite constitutional language stating that "the initiative process shall not be used ... for the proposal, modification or repeal of any portion of the Bill of Rights of this constitution."

If justices vote to allow the initiative to proceed, the conservative court may have to tie itself in a knot trying to placate Republican ally Leland Speed, interim executive director of the Mississippi Development Authority, who filed a suit in Hinds County Circuit Court challenging the legality of a Mississippi Farm Bureau-sponsored eminent-domain ballot initiative.

Speed, who did not file suit in his role with the MDA, but as "a taxpayer and qualified elector," opposes the eminent-domain restriction initiative because, the suit states, the Mississippi Constitution of 1890 "prohibits use of the initiative process for the proposal, modification or repeal of any portion of the constitution's Bill of Rights." It is essentially the same argument McDuff used against the Personhood Initiative.

"The enforcement of Section 273(5)(a) is necessary to protect the Bill of Rights from the initiative process," wrote attorney Fred Banks, representing Speed.

"While some land owners may think Initiative 31 enhances their property rights, it will in fact take away sales opportunities from many property owners. In addition, if the initiative process can be used to modify or repeal property rights, it could be used in the future to take away those rights if a popular majority chooses to do so."

Last year, plaintiffs opposing the Personhood Initiative took their suit to Hinds County Circuit Court, but newly appointed Hinds County Circuit Court Judge Malcolm Harrison, appointed by Republican Gov. Haley Barbour, kicked the issue to Supreme Court by ignoring the constitutional language and concluding that Personhood Mississippi had collected enough signatures to get started.

Hinds County Circuit Court has not ruled on Speed's suit. But if the court punts the second initiative to Supreme Court, judges ruling in favor of the overriding  strength of the ballot initiative for the Personhood Initiative would be hard pressed to explain the sudden deterioration of that strength when confronted with an initiative opposed by Republican leaders like Gov. Haley Barbour. Barbour refused to restrict eminent domain during the 2009 legislative session despite overwhelming bi-partisan support from the state's Republican and Democratic legislators.

The governor vetoed a bill restricting eminent domain that year, arguing that excluding eminent domain for for-profit companies would discourage business growth in the state.