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Ohio Issues 1, 2, and 3 and the Mississippi Personhood Amendment

by Professor Will Huhn on November 9, 2011

in Constitutional Law,Wilson Huhn

Ohio Issues 1 and 2 go down to defeat, but Issue 3 is approved by this swing state's voters.  The Mississippi personhood amendment is rejected by that conservative state's voters.

Ohio Issue 1 lost because voters don't want judges serving into their 80's.  It is age discrimination, but age discrimination is common in our law – when I was a child according to the law I wasn't supposed to drive (but hey, we lived way out in the country!).  Now that old age is stalking me, sending me flowers I can barely smell anddelivering threatening reminders of eventual but ever closer decay, I perceive the unfairness of forced retirement age.  Too late.  The Supreme Court has ruled that age discrimination is constitutional.  Massachusetts Board of Retirement v. Murgia (1976) (upholding retirement age of 50 for police officers).

Issue 2 lost because S.B. 5 represented a simple case of overreaching.  Ohio elected Republicans to state office to bring back jobs and balance the budget.  Instead they wasted the opportunity that the voters gave them by attempting to punish (and demonize!) public employees and their unions.  The defeat of Issue 2 was a strong message to the GOP – there are a lot of teachers, police officers, firefighters, and state university employees, and they have family and friends who vote too.  Why make enemies of all of them?  Particularly with a presidential election looming!  The national party will tell Ohio Republicans to cool it.

Issue 3 won in Ohio because the individual mandate contained in the federal Affordable Care Act is a very unpopular measure.  The rest of the bill is very popular, as is the general principle of universal coverage for health care.  The problem is that we can't require health insurance companies to issue policies to everybody for every preexisting condition unless everybody buys health insurance.  Looking forward to 2012, the GOP can run campaigns based upon the unpopularity of the individual mandate – but only if it nominates a candidate who has not made it his signature legislative achievement.  That candidate has yet to be determined.

The defeat of the Mississippi Personhood Amendment graphicly exposed the contradiction that lies at the core of the pro-life movement.  The single most powerful principle inspiring those who wish to outlaw abortion is that "life begins at conception" and that therefore abortion constitutes the murder of a human child.  It is not actually true that "life begins at conception" – life is undoubtedly present at conception, but in truth life is continuous - the string of life is unbroken back to its creation billions of years ago.  All reasonable people are "pro-life" in the sense that we are grateful for our own lives and respect the life around us in this tangled bank.  The contradiction within the conservative movement arises not from being pro-life, but from failing to recognize that as a practical matter very few people are willing to act as if a fertilized egg is really a human being.  To enact laws based upon the principle that a fertilized egg is a human being would, as a practical matter, outlaw the most reliable and common methods of birth control, IUDs and birth control pills.  IUDs prevent implantation of a fertilized egg in the womb, and birth control pills prevent conception but also have the effect of preventing implantation.  Voters are not about to outlaw contraception, nor is the Supreme Court ever going to overturn Griswold v. Connecticut (1965).  What are the alternative philosophies for the pro-life movement?  "Life begins at implantation" is too technical a distinction and inaccurate as well.  "Life is present at conception but a fertilized egg is not yet a human being" is what the pro-choice movement believes.  If the personhood amendment cannot pass in Mississippi then it cannot be adopted anywhere.  Its failure demonstrates that the pro-life movement will, at some point, have to develop a clear and consistent philosophy on which to base its legislative program. 

There is room for cooperation between the pro-life and pro-choice movements.  Both sides wish to reduce the number of abortions.  The pro-choice side wishes to reduce the number of unwanted pregnancies thorough better sex education and wider availability of contraceptives – in other words, through more informed and effective choice.  If the level of bitterness on both sides can somehow be reduced, there can be compromise on this issue.  The defeat of the personhood amendment indicates that voters recognize that there must be a compromise.


Dave November 9, 2011 at 9:44 pm

I was surprised to see issue 1 go down. The current system is an odd way to determine things. Some judges can serve until they are nearly 79 because their birthday fell and a good time in the election cycle, others must retire at age 76.

Issue 2 went down because a fortune was spent on dishonest advertising (and demonizing).

Issue 3 passed because people never supported Obamacare. Polling told us support for the health care takeover struggled to reach 40%. This result was right in line with that.

I did not follow the Mississippi amendment that closely. I have the same questions that I always do about abortion. If abortions are not bad or just 'women's healthcare' why would anyone want less of it? Or how could the same people that do not believe in the death penalty for murder, believe in the death penalty for being a burden to your parents (especially if you are a minority).

larry d. November 10, 2011 at 4:16 pm

Good question. Why do we want less abortions, professor?

Should we expand the fight for fewer wart removals, too?

Aaron November 10, 2011 at 8:01 pm

For someone who points out that Issue 2 failed because of advertising that was "dishonest and demonizing," you don't seem to have a problem with using negative connotations towards health care reform by incorrectly labeling it "Obamacare" and "the health care takeover." Think about the language you are using; try to be honest and fair and not hypocritical.

larry d. November 11, 2011 at 1:19 pm

How is "ObamaCare" a negative connotation?

Aaron November 12, 2011 at 11:58 pm

Because that's not what it's called. It's a label put forth by anti-Obama right-wingers to constantly remind people WHO is in power, but not WHAT the legislation actually says. It's like when people on the left call the Iraq war Bush's war, just because they know that it will make people who didn't approve of Bush get unnecessarily angry about a war that they know relatively little details about. Both sides do it, but that doesn't mean that we have to perpetuate it by using it ourselves. We need to see past all of the political games and base our opinions on fact, not politcal lingo.

larry d. November 13, 2011 at 1:58 am

ObamaCare is what I call it, and what most everyone I know calls it. I'm offended when some lemming tells me I've got to use the Orwellian propaganda terms government officials are pushing.

Aaron November 10, 2011 at 8:02 pm

To Dave: For someone who points out that Issue 2 failed because of advertising that was "dishonest and demonizing," you don't seem to have a problem with using negative connotations towards health care reform by incorrectly labeling it "Obamacare" and "the health care takeover." Think about the language you are using; try to be honest and fair and not hypocritical.

Dave November 10, 2011 at 9:32 pm

Aaron, I will accept that the term "health care takeover" is prejudicial. I guess we could argue about if it is accurate or not. In my defense, something was told to told to Kucinich on that plane ride to make him stop opposing the bill because he thought it wasn't a enough of a takeover.

But I find the "Patient Protection and Affordable Care Act (PPACA)" term objectionable, because of the dishonesty and Orwellian nature of the name. It is not protecting anyone to force your will upon them and this was never going to save us any money. The numbers were faked during the debate and no one is repeating that nonsense anymore.

Aaron November 12, 2011 at 9:29 am

That's fine if that's how you feel, but that doesn't make it right for you to use unfair language to make something sound scary or evil, just like some of those commercials you were criticizing did. I don't want to get into a debate about whether the health care reform act is a good or bad thing, I just wanted to point out your use of incorrect terminology, while at the same time you were upset about other people doing the same thing. Yes, a 30 second prime time commercial pulling on someone's emotions is worse than a guy commenting on, but you do see that what you were doing was similar.

larry d. November 12, 2011 at 12:42 pm

It's not incorrect terminology because it's more accurate than the government propaganda terms you prefer. No one really cares if that offends you or not.

Aaron November 12, 2011 at 11:59 pm

This isn't about being offended. It's about being correct, and you are incorrect.

Dave November 13, 2011 at 12:17 am

I like how you attack my position… but you don't want to debate.

You could just say someone is wrong, and we should leave it at that.

larry d. November 13, 2011 at 1:59 am

You're funny. And wrong. So there.

Aaron November 12, 2011 at 9:51 am

Abortion will always be an extremely sensitive issue. Everyone agrees that if we can work to reduce the number of abortions that would be a good thing. Everyone would also agree that if we could eliminate them altogether that would be even better. However, people are going to get them no matter what, either safely if abortion is legal, or very dangerously if abortion is made illegal.

Pro-lifers have a good and easy arguement. Anyone can see that killing a baby is wrong. I'll admit that. Fetus, embryo, fertilized egg, it's eventually going to be a baby, and abortion kills it. If a pregnant woman is murdered, the killer can be charged for killing 2 people. However, if a pregnant woman decides to have an abortion, that's fine. It's a very good arguement and even the most staunch pro-choicers have to admit that the pro-lifers make some excellent points.

However, what Professor Huhn points out here is also a very good point, and one that I've been emphasizing for years. If you think abortion should be illegal, then you shouldn't support birth control either. If you are pro-life but think birth control is perfectly fine, you have some conflicting ideas. Birth control doesn't prevent conception, it only forces the fertilized egg out of the system, not allowing it to implant. If life begins at conception, and abortion is murder, then it would have to stand that everyone who is on birth control is a murderer. It doesn't matter that it's easy, or that it's not an invasive medical procedure. It's doing the same thing that an abortion would do, removing a potential baby from your system and killing it.

larry d. November 12, 2011 at 12:45 pm

By the same token, if you think a woman should have the right to choose to kill her unborn baby, you must also support giving her the right to kill her children at will up until they reach the age of full rights. We can debate whether that's 18 or 21.

Aaron November 13, 2011 at 12:38 am

Right, another good pro-life arguement, but you're missing the main point. If life begins at conception, and you have an anti-abortion pro-life stance, then you should possibly also be fighting to make birth control illegal.

As the professor says, if we want to enact laws that treat a fertilized egg as a human being, then we would have to outlaw birth control along with abortion.

This doesn't have to be a heated discussion about abortion. It's just an interesting point of view on birth control. If life truely begins at conception, which is a very fair and biologically sound arguement, then explain to me how birth control is morally fine, but abortion isn't. It's a difficult conundrum, no matter what your belief is. And yes, I just said conundrum.

Aaron November 13, 2011 at 12:40 am

Dave, I didn't attack your position and then avoid a debate. I simply criticized your unfair and condescending terminology. I never even took a stance on health insurance reform. I simply said, it's not called Obamacare or health care takeover, so you shouldn't call it that.

Aaron November 13, 2011 at 2:03 am

To clarify one last time, I was merely making some objective statements.

I never said I was pro-health insurance reform or anti-health insurance reform. I was just pointing out that if you want to have an intelligent conversation about it, you should start by respectfully referring to it by an appropriate title, and not refer to it with terminology that is clearly necessarily derogatory.

I never said I was pro-life or pro choice. I was just pointing out that the professor's point on birth control is interesting and worth much more discussion and attention in media and politics than it gets.

Dave November 13, 2011 at 10:37 am

You will have to define what terms are acceptable terms. What about the term Obamacare offends you? You now used the term "health insurance reform," I will let you know that I am bothered with any description that includes the word reform. Ditto for fix, repair and resolve, etc.

Aaron November 13, 2011 at 1:39 pm

Now you're just being childish. I am rubber, you are glue. Reform is a perfectly normal word that is used in politics, and everywhere else, all the time. When something is being changed, it's being revised, reformed, amended, etc. Let's not start acting silly. "Obamacare" is a label invented by the right, that obviously has a negative tone, that is mostly only used by people who are against it, or by people who don't know any better and actually think that's what it's really called.

Medicare isn't called "Truman Care" or "Johnson Care" or "Old people entitlement care" or "Socialist medical takeover overhaul scary scary scary care."

It's like calling things class warfare when they are not actually class warfare, or calling someone communist or socialist when they are not actually a communist or socialist. It's like calling the Iraq War Bush's War or calling Bush a warmonger when he clearly isn't. Like I said, both sides do it. That's politics. That doesn't mean that we should eat it up with a spoon and start doing it ourselves.

We are just going to go around and around on this, I think I've made my point and you've made yours. As the pundits say, we're just going to have to leave it there.

larry d. November 13, 2011 at 10:22 pm

You haven't made any points, Aaron. Your self-righteous indignation has devolved into a full-blown delusional stage, I'm afraid.

Dave November 13, 2011 at 2:01 pm

I wonder if John Glenn knew it was an insult to have something named after him when they renamed the NASA facility?

Medicare didn't need to be renamed because it was not given an intentionally dishonest name. I dare say if it was called "everyone will now live to age 300-care" no one would call it that.

Obamacare is a dog with fleas, I wouldn't want it named after me. But those that jammed it down our collective throats against popular will should be proud to have their name attached to it. They are still telling us how great it is.

The word reform implies improvement so I do not think it belongs here.

It is ok for you to wring your hands about the terms I choose, but it is not ok for me to question your terminology?

Aaron November 13, 2011 at 5:50 pm

Naming a NASA facility after John Glenn is not a good analogy here, it's completely different, and you know it. It's an honorary namesake, which is not what "Obamacare" is used as. Again, this is silly.

"Reform" has no hidden implications. It is not a loaded word. Some people do actually honestly believe that this reform is an improvement. If you don't then that's perfectly fine, maybe you're absolutely right and it won't be an improvement at all, but that doesn't change the FACT that it is a REFORM. It's just what it is, by definition.

"Obamacare" is an invented term, and it IS a loaded word. It should be obvious to anyone that this is not the same thing as attacking a common English word like "reform". If you start attacking everyday common words, we won't even be able to have conversations anymore. This is nonsense.

When Medicare was being passed, many people opposed it, and called it socialized medicine, socialism, government takeover, whatever. History repeats itself. So in many people's opinions, it probably DID need to be renamed, and many people thought that Medicare was "jammed down their throats." Now, people would RIOT if the government ever did away with Medicare, it's that important to our society.

It's perfectly ok for you to question my terminology, but it's also perfectly ok for me to defend myself and explain to you why I think my terminology is more fair and correct than yours, and it's also perfectly ok for you to defend yourself and explain to me why you think your terminology is more fair than mine, which is exactly what we're doing. It's called having a conversation.

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