On Nov. 8, we as Mississippi voters, will have the opportunity to express our views about a proposed amendment to the Bill of Rights contained in the Mississippi Constitution (Amendment 26). Amendment 26 seeks to define the term “person” to include every human being from the moment of fertilization, cloning, or the functional equivalent thereof.
Choosing fertilization as the person-defining event in the reproductive process is biologically significant, and has far-reaching impacts in areas such as birth control, assisted reproductive technology, and even gestation more generally. A woman’s ova (eggs) may be fertilized — at which point they are typically called pre-embryos until implantation — either naturally within the woman’s Fallopian tube, or fertilization may occur externally with medical assistance (as with in vitro fertilization (IVF). In either case, the pre-embryo’s personhood, and associated right to life, is established immediately (at the moment of fertilization) under proposed Amendment 26.
Though many people are committed to the prospect of outlawing abortion (assuming that Amendment 26 will survive state and/or federal constitutional challenge), it is worthwhile to explore how far a commitment to pre-embryonic personhood extends. Individuals may be OK with prohibiting abortion even in the context of rape and incest, because after all, the pre-embryo had no control over the circumstances of fertilization. In situations where the mother’s life would be at risk with a continued pregnancy (as is possible with ectopic pregnancies), arguments can be made in terms of self defense or the principle of double effect to assist with difficult decisions regarding saving the mother’s life.
But pre-embryonic personhood has implications beyond the abortion context. To be consistent, we would need to be committed to outlawing any form of birth control that has efficacy after fertilization occurs, such as intrauterine devices (IUDs), the morning after pill, and other methods (regardless of form — pill, patch, shot or otherwise), that do not specifically prevent fertilization from occurring. We must be willing to restrict a couple’s choice as to the birth control method they will use, notwithstanding any medical reasons for choosing one method over another.
There are also implications regarding the availability of fertility treatments. In proposing Amendment 26, the sponsor has suggested that the amendment says nothing directly about whether IVF would be outlawed. It doesn’t need to. The IVF process carries with it the known risk that not all of the pre-embryos implanted will result in fully-gestated pregnancies. If two out of three pre-embryos are lost in the process, this would seem to be an unacceptable loss of life. If we are committed to pre-embryonic personhood, we should be committed to banning IVF and other similarly risky fertility treatments until such technologies are safe for all persons (including pre-embryos) involved.
And what about women who experience miscarriages? It is commonly understood that as many as 50 percent of all naturally fertilized ova are spontaneously expelled from the woman before, during, or shortly after implantation. The old wives’ tale advises newly pregnant couples to wait three months to announce the pregnancy. A commitment to pre-embryonic personhood would require us to investigate these miscarriages to ensure that no foul play was involved in the loss of these persons. This does not necessarily mean that all women experiencing miscarriages would be prosecuted; however, our legal framework requires an investigation when there has been a loss of life.
Proponents of personhood amendments, like those here in Mississippi (and in Colorado before us, where similar initiatives in 2008 and 2010 were unsuccessful), suggest that laws will have to be written or re-written to account for our new appreciation of pre-embryonic personhood, but if we are committed to this position, I am not sure that this is true. For instance, if we wrote a law to include an exception that exempts women who miscarry from prosecutorial investigation, does that not show a lack of commitment? If we learn of the death of a toddler while under the supervision of his or her mother, would we not perform a full investigation into the cause of death?
We spend a tremendous amount of money on medical research and development in an effort to save and prolong lives. If we are committed to pre-embryonic personhood, should we not be spending far more money trying to prevent the loss of life associated with spontaneous miscarriages? Along these lines, if a woman has an inhospitable uterus, which prevents fertilized ova from implanting (leading to miscarriage), should the State step in to restrict or monitor her sexual practices, to imprison her, or at least to mandate that she take a form of birth control that prevents fertilization? Would not our commitment to pre-embryonic personhood require such action to save countless lives put at risk month after month?
Many people are committed to prohibiting abortion. Before we vote on Nov. 8, we should explore how far that commitment extends. Mississippi College School of Law will be hosting a symposium in late October to explore these and other implications of the personhood amendment. Information about the symposium will be made available on the MC Law website at www.law.mc.edu.
Jonathan F. Will is an assistant professor of law at Mississippi College School of Law and serves as director of the law school’s Bioethics and Health Law Center.