Additionally, the decision says that though Measure 26 seeks to "modify" the definition of person, that definition doesn't currently exist. Because the plaintiffs, in this case, Planned Parenthood and the ACLU, were attacking Measure 26 on "substantive" grounds and since the measure wasn't yet law, the court couldn't find in favor of them, it argued.
Crampton, who has been with Liberty Counsel since 2007, said in a recent interview archived online for the Liberty Counsel's radio program that the state's attorney general Jim Hood, an anti-abortion Democrat, has committed to defending the measure in court, should it pass. Says Liberty Counsel's co-founder Mathew Staver, "You can't get any more to one side in the spectrum than we are now, in terms of court precedent," admitting that Measure 26 is extreme under current law.
Ultimately, if the measure passes and goes through a series of state or federal court challenges, it has the potential to end up before the Supreme Court. Garcia-Jones of Personhood USA says there is some risk if the measure goes that far. He says he anticipates Personhood USA and its affiliates would be defending the measure on the grounds of the Tenth and Fourteenth amendments. The Tenth Amendment, typically used to defend the rights of states to enact legislation in the interest of its constituents, is the argument Garcia-Jones expects would be most likely to gain judges' support.
"Some of the pro-life groups that aren't on board with our strategy say this measure could create an equal protection defense on abortion," he says. This has long been the argument Justice Ruth Bader Ginsburg has used in her arguing on behalf of women's rights. When dissenting in Planned Parenthood vs. Casey in 1992 Ginsburg, for example, argued that women are explicitly granted the right to abortion under the Fourteenth Amendment, granting them equal protection under the law. "Ginsburg, she's the most radical on the abortion rights side and supports this position," says Garcia-Jones. "What it would take for that to happen, from Roe to equal protection, someone like Kennedy to switch to the pro-abortion position."
But Northup expressed doubt that Kennedy would endorse what she calls a "radical" position. When Roe vs. Wade was challenged in 1992, Kennedy was the deciding swing vote in reaffirming the core principles of Roe. "It's hard to imagine that this would cause Kennedy to move off his position on this," Northup says.
For now, both Measure 26's supporters and pro-choice activists like those at the Center for Reproductive Rights are waiting to see what the outcome of today's vote will be. Even if it's defeated, Personhood USA won't let up its efforts anytime soon. If the amendment does pass, the measure could be tied up in court for years. For both sides, this will probably be a long battle.
Image credit: Rogelio V. Solis/AP