Activist Judge Junks Nevada Personhood Measure for Vague Wording


Even for those of us sympathetic to the “personhood” approach to fighting abortion, it’s easy to see that Personhood Nevada didn’t do itself any favors with the wording of their state’s proposed personhood initiative, which a judge threw out on December 21 for being too vague:

To me it is not clear,” Carson City District Judge James Wilson told petitioners late Wednesday, according to news reports. “It is not capable of being rehabilitated through rewriting.”

The petition, from Personhood Nevada, states: “The term ‘person’ includes every human being.” 

Constitutionally speaking, I can’t see where Judge Wilson gets the authority to invalidate citizen ballot initiatives for “clarity” or any reason other than constitutionality; it certainly isn’t listed among the judiciary’s powers under Article III of the US Constitution, nor does it seem apparent under Article 19 of the Nevada Constitution, which defines the state’s initiative & referendum processes. It’s up to the voters of Nevada to decide whether the measure is clear enough for their tastes. (UPDATE: below, commenter LY112 directs me to Nevada Revised Statutes 295.009 and 295.061, which do establish a clarity requirement and provide for judicial review of initiative language.)

Practically speaking, however, I actually agree that the petition is vague enough that it would invite needless uncertainty and equivocation in the courtroom as well as on the campaign trail. In defense of their brevity, Personhood Nevada argues on their FAQ page:

Personhood Nevada believes in the value of simplicity and clarity for language in our Nevada Constitution. We salute and share Nevadans’ individualism, independent spirit and healthy dubiety of government. We have therefore chosen straightforward Amendment language which everyone can understand, not just lawyers and politicians. Albert Einstein once said, “Everything should be as simple as possible but not more so.” Our goal is adopt clear and simple language such that children will be able to explain it clearly to lawyers.

Unfortunately, simplicity and clarity don’t always go hand in hand. Those of us who’ve studied the subject may know that “human being” means embryo from fertilization onward. But the initiative doesn’t say so, leaving judges all the leeway they need to infer whatever starting point for “human being” they wish, be it fertilization, implantation, heartbeat, first breath, viability, or some even more radical, Singeresque standard of mental sophistication.

If we could trust judges to rule based on the plain meaning of words, interpreted in light of basic scientific knowledge, we wouldn’t need such amendments in the first place, because courts never would have ruled that “privacy” means “abortion” or “person” doesn’t mean “unborn baby.”

The trick to any successful amendment or referendum is leaving activist judges as little wiggle room as possible in which to substitute their own will for the people’s—“let no more be heard of confidence in man, but bind him down from mischief,” in Thomas Jefferson’s words. Any ambiguity—even on something that should be an obvious inference—is a potential weak spot. For pro-lifers, that means spelling out when human life begins, what procedures you want banned, the works.

Granted, it’s impossible to sufficiently preempt every conceivable abuse of the law, just as no house can be perfectly burglar-proofed. But pro-lifers can at least block the activist tricks we already know about, which Personhood Nevada’s well-intentioned initiative unfortunately doesn’t do.