Photo By dennis myers Conservative activist Richard Ziser is launching another statewide ballot initiative, but this time some of his traditional allies are letting him go it alone.

A proposed constitutional amendment seeking to stop abortion
and end-of-life decisions has been filed with the Nevada secretary of
state’s office.

In its entirety, the new law would read, “In the great state
of Nevada, the term ‘person’ applies to every human
being.”

The theory is that by bestowing “personhood” on fetuses,
Roe. v. Wade—the 1972 decision that restored the right to
abortion—would be invalidated. Similar measures are being
circulated in several other states. In 2008, an early version was
defeated in Colorado by 46 percentage points.

“It’s another attack on abortion rights for women.
… Abortion might not be available at all,” said Nevada
abortion rights leader Louise Bayard deVolo.

The measure was filed by Richard Ziser, a Las Vegas real estate
figure and unsuccessful U.S. Senate and county school board candidate
who organized the initiative petition campaign that placed a ban on
same-gender marriage in the Nevada Constitution.

The “personhood” movement started because of language in
U.S. Supreme Court Justice Harry Blackmun’s original opinion in
Roe. This is that language:

“The appellee and certain amici argue that the fetus is a
‘person’ within the language and meaning of the Fourteenth
Amendment. In support of this, they outline at length and in detail the
well-known facts of fetal development. If this suggestion of personhood
is established, the appellant’s case [the case for abortion], of
course, collapses, for the fetus’ right to life would then be
guaranteed specifically by the [Fourteenth] Amendment. The appellant
conceded as much on reargument. On the other hand, the appellee
conceded on reargument that no case could be cited that holds that a
fetus is a person within the meaning of the Fourteenth
Amendment.”

From this, the advocates of the personhood movement deduced that
they could make the fetus a person by passing a law saying it is
one—and thus overturn Roe.

Settling scientific disputes by lawmaking is rare, and it often
generates mirth, as when the Indiana House of Representatives in 1897
passed a bill decreeing that pi is not 3.1416. But that’s not the
only problem the Nevada initiative petition faces.

For one thing, it may not do what its sponsors seem to think it will
do. It defines a human being as a person, but it doesn’t define a
fetus as a person (or a human being, for that matter). The
fetus, in fact, is not even mentioned.

There is some explanatory text in the petition—“
‘Human being’ includes everyone possessing a human genome
specific for an individual member of the human species, from the
beginning of his or her biological development.” But that is not
a part of the initiative petition that would go into the law.
It’s basically a sales pitch.

By contrast, the 2008 Colorado personhood measure, Amendment 48,
spelled out much more clearly what the amendment would do: “As
used in sections 3, 6, and 25 of article II of the state constitution,
the terms ‘person’ or ‘persons’ shall include
any human being from the moment of fertilization.”
(Italics added. Amendment 49 lost, 73-27 percent.) Even that language
was criticized for its vagueness.

So if the Nevada petition is approved by voters, it could very well
leave abortion law entirely unchanged. However, abortion supporters are
still nervous about the language. One of them said, “The concern
is that the [Nevada Supreme] Court would say, ‘The voters
certainly didn’t mean to do nothing.’ ” That could
lead to an interpretation of the initiative that is at variance with
its plain language.

Another problem faced by the petitioners is that they are trying to
use state law to override the U.S. Constitution. Roe v. Wade
rests on the authority of the 14th Amendment.

Some anti-abortion leaders believe the personhood movement drains
off resources that would be better applied to strategies that offer
better opportunities for results.

Nevada Eagle Forum, Nevada Families and two other anti-abortion
groups have issued a statement withholding support from Ziser’s
initiative.

“Unfortunately, we believe the ‘Personhood’
initiative petition filed in Nevada with good intent will not protect
the unborn or stop abortion. It is so vague and general that it may not
even apply to abortion at all. In addition, a state personhood
amendment cannot overturn Roe v. Wade.”

Ziser was not available for comment, but attorney Gualberto Garcia
Jones of Personhood USA said that “there is nothing vague in
stating that ‘all human beings shall be considered
persons,’ just like there is nothing vague in stating that all
persons have the inalienable right to life, liberty and the pursuit of
happiness.”

The mild language employed by the Nevada anti-abortion groups toward
the personhood initiative sponsors was not returned by Personhood USA,
which accused Nevada Eagle Forum and the others of being “in
league with Planned Parenthood …”

The text material on the petition says the measure would provide due
process, but it doesn’t say for whom, and both state and federal
constitutions already guarantee due process.

Clark Forsythe, an attorney for the anti-abortion group Americans
United for Life and no fan of Blackmun or Roe, has written that
personhood advocates are misreading Blackmun’s opinion by taking
certain terms and phrases out of context.

“First, this is a classic case of reading the language out of
context,” Forsythe wrote in an essay posted at National Review,
the conservative magazine. “The phrase ‘suggestion of
personhood’ in Blackmun’s opinion clearly refers to the
earlier phrase ‘within the language and meaning of the Fourteenth
Amendment.’ It does not mean “personhood” in any
broader medical, moral, or legal sense. Blackmun is emphasizing the
meaning of ‘person’ within the 14th Amendment.

“Second, no state can—by statute or constitutional
amendment—change the meaning of the 14th Amendment to the federal
constitution. The 14th Amendment can be changed only by another federal
constitutional amendment or by the U.S. Supreme Court’s changing
its interpretation of the 14th Amendment.”

The personhood advocates, Forsythe wrote, focused on
Blackmun’s use of the term “without realizing that Blackmun
is being ironic.”

In 1990, Nevada voters approved the state’s law on abortion,
which essentially embodies Roe v. Wade, by 71.3 to 27.2 percent.
Given that landslide vote and the opposition of both abortion
supporters and abortion opponents to the personhood initiative, some
activists suggest that the initiative’s sponsors don’t
expect to win but are circulating the petition to aid political
fundraising. Highly polarizing issues—flag burning, school
prayer, evolution—are known to be useful in political
fundraising, particularly direct mail solicitation.

Democrats, meanwhile, believe that if the initiative qualifies for
the ballot, it will help draw their voters to the polls in a way U.S.
Sen. Harry Reid—who will be at the top of the ballot—is not
likely to do.

Of greater concern to some critics than the threat to abortion is
the menace the initiative may pose to end of life procedures such as
living wills. The textual material designed to sell the initiative
reads that it would “prohibit … state intrusion in end of
life decisions.” Living wills are authorized by Nevada Revised
Statute chapters 449 and 450b.

Former state legislator Steve Coulter, who sponsored Nevada’s
first living will law, said he would be concerned about the measure
being used to interfere with end of life decisions.

“Why put something that vague in law when you don’t know
what it’s going to do?” he asked. “Do we really need
to roll the dice on yet another subject?”

He said he suspects that if the measure is seen as interfering with
end-of-life decisions guaranteed by the law, the voters will reject
it.

Avatar photo

Dennis Myers

Dennis Myers was the news editor of the Reno News & Review. He was a journalist for more than four decades. In 1987-88 he was chief deputy secretary of state of Nevada. He was coauthor of Uniquely...