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Mississippi Initiative 26 - Personhood Amendment: What You Need To Know

Posted by Melissa Brisman, Esq. on with 0 Comments

by Melissa Brisman, Esq.

On Election Day, November 8, 2011, residents of Mississippi will vote on Initiative 26, a so called "Personhood Amendment" that if enacted will change how a "person" is defined in the Mississippi Constitution. The Mississippi Supreme Court ruled that the Personhood Amendment qualified for the November ballot after a petition with more than 100,000 signatures from Mississippi residents was submitted. Mississippi is now the second state, following failed votes in 2008 and 2010 in Colorado, to consider a personhood amendment.

If passed, language would be added to the Mississippi Constitution declaring that life begins "from the moment of fertilization, cloning or the functional equivalent thereof." As a result, undeveloped embryos would be entitled to a series of protections under the Mississippi Constitution, including the right to life, liberty, and the pursuit of happiness. Simply stated, abortion in the state of Mississippi would not be permitted for any reason, including rape or incest. If "person" were defined as proposed, a woman choosing to have an abortion could be prosecuted and charged with the crime of murder. Women's bodies, rights, and health would be subordinated to the protection of the embryo. Additionally, certain forms of birth control, such as the "morning after" pill would no longer be available and stem cell treatments for patients with Parkinson's, Lou Gehrig's disease and cancers like leukemia would likely be discontinued.

Supporters of the Mississippi Personhood Amendment, point to language in the majority opinion written by Justice Harry Blackmun in the landmark 1973 case of Roe v. Wade, (410 U.S. 113 ) to support their stance. Many of us can recall, and others have since learned the facts of this case which involved a single, pregnant, Texas woman, under the fictional name of Jane Roe, who challenged anti-abortion laws by stating that they violated her rights under the Constitution. Ultimately, the case was presented before the Supreme Court which decided that a fetus is not a person but "potential life," and thus does not have constitutional rights of its own. Roe's claim was upheld and her right to privacy entitled her to an abortion.

While the Supreme Court ruling provided for abortion rights, Justice Blackmun who wrote the majority opinion noted, "The appellee (State of Texas) and certain amici [pro-lifers] argue that the fetus is a 'person' within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment."

Supporters of Mississippi's Personhood Amendment rely on this language to contend that during Blackmun's time, the "well-known facts of fetal development" were a far cry from what is known today. Ultrasounds and DNA testing were not yet invented. In 1973, it was commonly believed that "life" began at "quickening," or when a woman first felt movement of the baby in the womb somewhere between 18 to 24 weeks. Supporters argue that in 1973 technology was unable to prove that a fully human and unique individual existed at the moment of fertilization and continued to grow through various stages of development until natural death from old age. Their position is that scientific evidence has advanced tremendously, and can now establish the humanity of the pre-born child. As a result, legal protections of personhood should be restored to the pre-born child.

While the Personhood Amendment would have on obvious effect on abortion and a woman's right to choose, there are other potential and perhaps unintended effects that could be far reaching and could tremendously impact the services performed at IVF clinics in Mississippi. Since more than one egg is harvested and fertilized to achieve a successful IVF pregnancy, making all the embryos "persons" under Mississippi law would make it difficult, if not impossible to continue offering IVF treatment within the state. When embryos are created and frozen as a part of reproductive fertility treatments, these embryos would legally be "persons" if this initiative passes, and consequently will have all the rights due persons. The problems resulting from this change would not only be many, but illogical as well.

For example, if embryos are to be defined as persons, would the freezing of embryos be considered child abuse? If one of these embryos "dies" in some part of the in vitro fertilization process, will a criminal investigation be conducted? Would physicians if faced with the choice of saving a woman's life or refusing to harm an embryo be sued for malpractice no matter what choice was made? Would stored embryos be given names (non-birth certificates)?

What about the several references to "person" currently found in Mississippi laws, which are inconsistent or incompatible with the Personhood Amendment? If passed, does it mean that embryos would have property or inheritance rights? Are Termination of Parental Rights laws applied to these embryos? Adoption laws? If more than five unrelated embryos are housed in a single building, will it have to be licensed as a child residential care home? It's ludicrous, yet the list could go on and on.

It seems that Mississippi Initiative 26 was drafted and proposed in an attempt to revisit and challenge Mississippi's abortion laws. These efforts have been successful in that the Personhood Amendment during the past few months has been passionately debated, spurring on pro-life speeches and challenges to women's rights.

The Personhood Amendment has called into question not only a woman's right to choose, but also stem cell research and treatment, and accepted infertility treatments designed to assist couples in creating and sustaining birth, which ironically is the stated goal of its proponents.
The concept that a person exists from the moment of "fertilization, cloning or the functional equivalent thereof" stems from religious beliefs. People have many different ideas and theories about when human life begins. Mississippi's Personhood Amendment is an attempt to impose one particular theory, the theory that life begins at fertilization. But what about those who believe otherwise? Why should they be forced to accept and live by this one theory? Religious ideology is not an appropriate foundation for the law in this country. Clearly, it is possible to be personally opposed to abortion for moral or religious reasons, yet believe it is wrong to impose these values on others via legislation.

Should this Amendment pass, legal challenges from entities such as Planned Parenthood and the American Civil Liberties Union are likely to follow, and in all probability would be successful. The reason is that Mississippi's Personhood Amendment, if enacted would affect the state's constitution and state laws that would be in direct contradiction to the United States Supreme Court's ruling in Roe v. Wade. Paragraph two of the United States Constitution, commonly referred to as the Supremacy Clause, establishes that the federal constitution and federal law generally trumps state laws and state constitutions.

You don't have to necessarily like abortion to respect the right of a woman's choice. As so aptly stated by Margaret Sanger, who founded the American Birth Control League, which later became the Planned Parenthood Federation of America, "No woman can call herself free, who does not own her own body." It's a fundamental concept.

Reprinted with permission.

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