Pa.’s abortion amendment could be undone by a single word
Call it poor grammar, imprecision, or "poor draftsmanship," but the wording of the ballot question meant to limit abortion in Pennsylvania may have doomed the effort before it even reached the public.
Pennsylvania Republicans are trying to ban abortion in our commonwealth. But their latest efforts are so overreaching, they just might inadvertently block themselves from accomplishing their ultimate goal.
The culprit is a tiny, ubiquitous word that could prove their undoing: any.
Over the summer the Pennsylvania legislature passed language that, if passed in a second session, and then approved by voters as a ballot question, would add the following line to the state constitution: “This constitution does not grant the right to taxpayer-funded abortion or any other right relating to abortion.” Because it’s a constitutional amendment and not a regular bill, Gov. Tom Wolf — who is avowedly pro-choice — can’t veto it. The process leapfrogs him.
Whether due to low information or just apathy, Pennsylvanians tend to overwhelmingly approve ballot questions. Among the 49 proposed amendments that voters have considered since 1968, they’ve approved 43 of them. So state Republicans, who have commanding control of both the state House and Senate, figured this was an easier path toward banning abortion in Pennsylvania than through the regular legislative process, which would be subject to the governor’s veto. Last week Wolf filed a lawsuit against this and other constitutional amendments in Commonwealth Court, but it remains to be seen how that will play out. For the moment, the legislature knows it has the upper hand.
What the legislature doesn’t know, apparently, is how to write.
According to Bruce Ledewitz, a law professor at Duquesne University, the drafters’ inclusion of the (frankly unnecessary) phrase “any other right relating to abortion” might prevent a court from finding personhood in the unborn — something that forced-birthers have been trying to do in state after state for decades.
The problem is that any — abetted by the almost-as-vague relating to — is concise, but not the least bit precise.
The drafters of the language for the constitutional amendment on abortion “were trying to head off not just funding for abortion but any other right that a court might come up with,” Ledewitz told me in a recent interview. If a fetus is considered a person, he continued, “you’d be conferring on the unborn child a right relating to abortion — namely the right not to be aborted. It still relates to abortion.”
And that’s where it gets problematic. The proposed language says the constitution does not grant any right relating to abortion — which, as Ledewitz explained, includes the unborn’s right not to be aborted.
In the spirit of concision: oops.
In the spirit of concision: oops.
“A right relating to abortion is not the same thing as a right to abortion,” continued Ledewitz. “It’s just poor draftsmanship.”
Even if the bill proceeds with this language, the effort by Pennsylvania Republicans could go sideways for other reasons. For an amendment to become part of the state constitution, it has to pass in two consecutive sessions of the legislature, and then be approved by voters — who might smack it down, the way they did in Kansas. Or Republicans, having seen what happened when Kansas put an abortion measure to voters, might get cold feet and abort the effort. Or the amendment’s drafters might realize they wrote the measure too broadly and decide to rewrite it, which would reset the clock.
It wouldn’t be the only proposed amendment that could use some redrafting: CBS Pittsburgh reported that another one of the amendments might inadvertently raise the Pennsylvania voting age to 21 — which runs contrary to the 26th amendment to the U.S. Constitution.
» READ MORE: To Pa. lawmakers: Stop trying to rush new laws that sidestep our normal process
But if none of those things happen, the same folks who thought they were being so clever about circumventing the governor to ban abortion in Pennsylvania might find that they, not the voters, are the ones suffering from “low information” — namely, the kind of info that could have prevented them from doing the exact opposite of what they were trying to do.
The Grammarian, otherwise known as Jeffrey Barg, looks at how language, grammar, and punctuation shape our world, and appears biweekly. Send comments, questions, and cognates to jeff@theangrygrammarian.com.