Supreme Court denies Personhood Oklahoma case

October 29th, 2012 | Posted by Atlee Breland in Legislation | Oklahoma

As we’ve recently discussed, Personhood Oklahoma filed an appeal earlier this summer to the Supreme Court, challenging the Oklahoma Supreme Court’s decision to reject the personhood initiative from the ballot.

Today, the Supreme Court declined to hear the case. The Oklahoma Supreme Court’s decision will stand, and personhood initiatives will not be permitted on the Oklahoma ballot this year or in the future.

When the Supreme Court decides not to accept a case for review, it doesn’t give any commentary. We don’t know for sure what the justices were thinking, only that they weren’t interested in hearing this case. However, we can make a few useful extrapolations from the denial of the certiorari petition in Personhood Oklahoma v Barber.

First of all, it tells us that even the conservative justices on the court weren’t very interested in taking up personhood. Certiorari petitions only require the approval of four justices, so Scalia, Thomas, Alito, and Roberts could have agreed to take it on without the consent of the liberal and moderate members of the Court.

Secondly, this case wasn’t exclusively about abortion. Rather, the central question was whether the OK Supreme Court acted properly in deciding to reject the initiative from the ballot. They did so because Oklahoma’s Constitution requires that initiative petitions not be “repugnant to the Constitution of the United States”, and they determined that personhood would directly conflict with the constitutional rights outlined in Roe v Wade and Casey. Personhood Oklahoma alleged in return that the right to file an initiative petition and bring it to the ballot constitutes political speech, and therefore that the Oklahoma Supreme Court violated their First Amendment rights.

By denying the certiorari petition, the Supreme Court implicitly rejected this assertion. If the Court had felt that the right to initiative was a federally-guaranteed expression of speech, they would have agreed that the issue merited further review and that they should hear the case. By letting the lower court’s verdict stand, they’re acknowledging that no federal rights were violated, and that the decision about what to put on the ballot is exclusively a state-level matter rather than being protected political speech.

More importantly, the Court clearly did not feel that the Oklahoma Supreme Court had made a severe error in judging personhood to be unconstitutional. One of Personhood Oklahoma’s arguments was that the case should be brought to the Supreme Court because the Oklahoma court had misapplied the relevant federal precedent. Their briefs drew on cases such as Webster and Ayotte v Planned Parenthood cases in an attempt to argue that personhood wouldn’t fundamentally conflict with the existing law. Letting the Oklahoma verdict stand signals that the justices agree with the Oklahoma court’s decision that personhood would violate the constitution.

Finally and most critically, the Court’s decision implies that they are not particularly eager to explore the question of personhood. While they could have chosen to take the case purely to discuss the speech and initiative issues, they also could have potentially used it as a vehicle to overturn Roe. For example, they could have taken the case and issued a decision stating that the definition of personhood is up to the various states to determine, and that the initiative could proceed because personhood isn’t “repugnant to the Constitution”. If the four conservative justices were not willing to grant certiorari, it suggests that they either aren’t especially interested in establishing fetal personhood or don’t feel they have the votes to do so.

Denial of certiorari doesn’t set a legal precedent for other states. This won’t affect future initiatives in other states like Colorado and Mississippi. It will, however, mean that no future personhood initiatives will be permitted in Oklahoma. While Personhood Oklahoma claims they will re-launch another petition attempt, it will inevitably meet the same fate in court. It’s still possible that the Legislature could pass personhood legislation or vote to put it on the ballot, but given the denial of certiorari in this case, legislators may be reluctant to involve themselves in a legally doubtful issue.

We applaud the Supreme Court’s decision not to take this case, and we’re pleased that personhood has reached the end of the line in Oklahoma.

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