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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.