On Monday, Personhood USA and its strategic partner Liberty Counsel announced that they will attempt to appeal the Oklahoma Supreme Court’s rejection of a personhood initiative to the US Supreme Court:
From the Liberty Counsel press release:
Liberty Counsel argues that the Oklahoma Supreme Court ruled prematurely on whether the definition of “person” conflicts with Supreme Court abortion decisions and, thus, deprived Personhood Oklahoma of its right to propose amendments to the state constitution and deprives Oklahoma voters of their First Amendment right to discuss and consider the issue. Personhood Oklahoma also notes that the Oklahoma court’s ruling contradicts decisions by other federal courts, state supreme courts, and the United States Supreme Court that do not permit courts to invalidate initiatives before they are voted on by the people and improperly analyzes the potential effects of the proposed initiative as if it were passed.
The paperwork they’ve actually filed is called a petition for a writ of certiorari (read full text). Basically, it’s a request for the Supreme Court to hear the case. However, it’s no more than a request, and the Supreme Court is by no means obligated to take the case. In fact, just 1% of cert petitions are ever granted, so the odds that this case will reach the Court are very low indeed.
The important thing to remember here is that this is not a case about abortion. Even if the Court were to take this case and decide in favor of Personhood USA, it would not overturn Roe/Casey. The fundamental question at issue is whether a state court has the right to decide the rules for its own ballot initiative process.
The state Constitution of Oklahoma provides for itself to be amended via ballot initiative. Some states have initiative processes, while others don’t, and the signature and distribution requirements for initiatives vary widely among states. 20 years ago, the Oklahoma Supreme Court found that the Oklahoma Constitution also requires that initiatives and referendums not be “repugnant to the Constitution”. Since the current state of federal constitutional law explicitly rejects fetal personhood, the Oklahoma Supreme Court found that the personhood initiative was “repugnant to the Constitution” and could not go forward onto the ballot.
As a general rule, state courts are the last stop in interpreting the state constitution. Their decisions on initiatives can’t be appealed to the Supreme Court unless there is some question of federal rights. In other states like Mississippi and Colorado, state courts have ruled that personhood can be allowed on the ballot, and personhood supporters hailed that decision as final and binding. In Oklahoma, the ruling went the other way.
In order to take this case to the Supreme Court, personhood advocates have to come up with some way in which the Oklahoma ruling violates their federal rights. This petition for certiorari is their attempt to explain why the Supreme Court should get involved. In the opinion of our legal experts, it’s a rather weak and unpersuasive one.
It’s obvious to the most casual observer that the general idea of personhood is in direct conflict with the current federal constitutional law. After all, that is the prinicpal goal of personhood measures: to end abortion by overturning Roe v Wade and Planned Parenthood v Casey. Personhood Oklahoma briefly attempts to argue that personhood would have other effects which might or might not later be found constitutional, and therefore that the Oklahoma Court can’t reject their petition on grounds of constitutionality. This, of course, is not likely to be persuasive; if a law’s primary effect is unconstitutional, it doesn’t matter if it has other effects which are constitutional.
As a general rule, state courts are the ultimate determiners of what is and isn’t in accordance with their state constitution. If the Oklahoma Constitution requires that petitions be in accordance with the US Constitution (as personhood very clearly is not), the Supreme Court is unlikely to take up the case unless it believes that there’s an issue of some other federal right. Personhood Oklahoma argues that initiative petitions are protected political speech, which is broadly true, but as with any right, there are limits.
Other court decisions at the circuit level, such as Initiative and Referendum Institute v Walker and Wirzburger v Galvin, have found that state courts can restrict initiatives on account of their subject matter. Both of those cases were appealed to the Supreme Court, which chose not to hear them.
We believe that the Supreme Court is similarly unlikely to hear the Personhood Oklahoma v Barber case, and that the state of Oklahoma will be legally allowed to continue to prevent any future personhood initiative attempts.