GRAND FORKS - In November, North Dakotans will decide whether they want their state constitution to include a personhood amendment, which states: “The inalienable right to life of every human being at any stage of development must be recognized and protected.”
Doesn’t it sound great that the state should be required to protect life? Amendment supporters think so, and are telling us that no harm can come from this vaguely worded provision. But consider:
Let’s say your wife is dying, and she has a living will declaring her desire not to be kept alive by a machine. She also has a do-not-resuscitate order declaring that should she go into cardiac arrest while on such a machine, medical staff is not to attempt to resuscitate her. She has given you power of attorney to make medical decisions for her.
Your wife’s health has resulted in her being placed on a heart-lung machine, and her doctor says she will never recover. As power of attorney, you order the doctor to disconnect the machine because that’s what your wife wants. Your son, however, who believes that your actions would result in murder, calls the police.
As a government actor who would be mandated to protect life under the personhood amendment, the responding officer may have to stop the doctor from fulfilling your wife’s wishes as stated in her living will.
Let’s say the county prosecutor then learns of this encounter, and believes that your actions amounted to soliciting a doctor to murder your wife. That prosecutor could file criminal charges against you. A trial court, unsure whether the personhood amendment permits such charges, could decide to let the prosecution go forward, knowing the North Dakota Supreme Court ultimately will decide this constitutional question.
Will the police officer in fact stop the doctor, and will the prosecutor charge you criminally? If the prosecutor does so, will the court let the case go to trial, and will a jury convict you? Will the North Dakota Supreme Court affirm the conviction based on the personhood amendment?
We can hope the answer to each of these questions is no, but with officers, prosecutors, courts and juries bound to “protect life” under the personhood amendment, we can’t be sure.
The amendment’s supporters claim that the amendment won’t have any affect on existing laws, will allow only the Legislature - not courts - to alter our laws and will have no force until the Legislature acts. They’re wrong on the first two counts and could be wrong on the third.
First, the North Dakota Constitution protects citizens from governmental abuses, which often come in the form of laws passed by the Legislature. Second, the courts enforce the constitution, which sometimes means that they hold statutes to be unconstitutional.
Third, it looks as though courts - and other government actors such as law enforcement officers and prosecutors - won’t have to wait for the Legislature to act to do their jobs.
On this last point, amendment supporters claim that the amendment isn’t “self-executing,” meaning that it has no legal force until the Legislature acts, and that the North Dakota Supreme Court has always held that constitutional provisions are not self-executing.
Untrue. The court has held constitutional provisions to be self-executing in State v. Hall (1918), Great Northern Railway Co. v. Duncan (1919); State ex rel. Reese v. Mooney (1934); State ex rel. Syvertson v. Jones (1946); and State ex rel. Vogel v. Garaas (1978).
An amendment may be self-executing if it doesn’t contain language like “as provided by law” (which the personhood amendment doesn’t contain), and if it sets forth a rule that government actors can follow on their own. The personhood amendment sets forth just such a rule: It requires law enforcement officers, prosecutors, courts and other government officials to protect life until its end, which the Legislature clearly has said is marked by permanent cessation of either brain or heart functioning.
Amendment supporters may say that I am employing scare tactics to advance my agenda. As a constitutional law professor and citizen of North Dakota, my agenda is to encourage a state constitution that is clear, helps - doesn’t hurt - North Dakotans and prevents the government from intervening in the personal lives of citizens and families when emotional and heart-rending decisions must be made.
On these counts, we should indeed be scared of the personhood amendment.
Morrison is an assistant professor at the UND School of Law, where he teaches constitutional law and criminal procedure. The views expressed here are his alone and are not necessarily those of UND or its School of Law.