Op-Ed: Life and Law — The commitment to pre-embryonic personhood

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.

Mississippi College professor of law Jonathan Will

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.

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16 Responses to “Op-Ed: Life and Law — The commitment to pre-embryonic personhood”

  1. Amelia McGowan Says:

    Wonderful article!

  2. Matt Says:

    I have never seen someone so committed to their pro-abortion position that they were willing to come up with such far-fetched gobbledygook as you just did and disguise it all as legitimate reasons to oppose Amendment 26. Good try, Captain Bioethics and Health Law. Mississippians aren’t going to fall for your scare tactics. This is about one thing and one thing only: ending abortion. The more you try to make it about birth control and ivf and CSI:Mississippi tracking down miscarriage victims, the more obvious it becomes to everyone. Mississippi is going to overwhelmingly vote for Life by voting “Yes!” on Amendment 26!

  3. Wayne A Slocum MD Says:

    The Mississippi Section of the American Congress of Obstetricians and Gynecologists join you in opposing this amendment. Instead of the personhood amendment we suggest it be thought of as ‘the law of unintended consequences\

  4. Alluvial Says:

    The people who oppose this amendment didn’t “make it” about birth control, IVF, and ectopic pregnancy; the outsiders (Personhood USA) who started it did that.

  5. Kristen Boyden Says:

    The “scare tactics” accusations fail to address the legitimate concerns surrounding this initiative.

    Thank you, Professor Will and Dr. Slocum, for standing up to the bullies who support this harmful legislation. Thousands of Mississippians stand with you. With our full names attached.

  6. Lhay Thriffiley Says:

    Well said. There is no “far-fetched gobbledygook” in your writing. Your opinion is well-reasoned, and your points are clearly undisguised and legitimate. If passed, Amendment 26 would allow and may potentially obligate a criminal investigation into any “she was pregnant/now she isn’t” situation. This Amendment is as much about women’s health rights, IVF, miscarriage, rape, incest, ectopic pregnancy and birth control as it is about the ethical argument of life, because they are all natural vs. managed pregnancy related topics.

    And Matt, if you want an anti-abortion amendment, you should write one, preferably with language that addresses how to manage issues of questionable spontaneous miscarriage, IVF embryo selection and post-fertilization birth control. While you’re at it, you should throw in DNA paternity testing and mandatory child support.

    VOTE NO.

  7. Nicole Bradshaw Says:

    I find your comments serious food for thought, Mr. Will. I am a parent myself, and though I do not advocate abortion, I will be voting against this amendment. It’s poorly written and far too broad. As previous posters have stated, it will have numerous, far-reaching effects that will take years to sort out via our court system, which will cost taxpayers dearly in both administrative time and scant financial resources. I do not trust our government to limit itself. And since I am of the mind that less, not more, government is preferable, I cannot support this amendment.

  8. MS Business Journal Op-Ed :: Parents Against MS 26 Says:

    [...] a great op-ed in the Mississippi Business Journal today on the implications of personhood, written by a MC Law [...]

  9. Elizabeth Feder Hosey Says:

    The naivete of people like Matt is what this article hopes to address. Hopefully reasonable minds will find this article and vote NO on 26. The language of 26 is very problematic. Not every lay person might understand that. There is a reason why people must attend law school before practicing law. Words are the main substance of our laws, and when the words are careless, our laws will also be careless. Thank you, Will, for your thoughtful article.

  10. Mike Rasberry Says:

    Elizabeth Feder Hosey,
    The naivete of those writing here is entirely within the body of those who oppose 26. It reveals a desire to parse every phrase with the presupposition that some nefarious, or careless activity is at work.

    I’m extremely disappointed that a Man employed by Mississippi Baptists would demonstrate a seeming preference toward the pro-choice position.

    That he and the medicos concur is even greater cause for concern.

  11. Amarette Says:

    Mike,

    You seem to be confusing MC LAW School with a theological Seminary. If the Baptists (I am one) did not pay Prof. Will to teach exactly what he is saying here, then the Baptists would be sending lawyers in the world that are very poor critical thinkers and will fail in their careers.

    I despise abortion. However, this law does not say a single word about abortion. How can you assume it will stop abortion but simultaneously not effect every other instance a fertilized egg could be destroyed?

    That is all Will is talking about. What is so controversial about discussing all the different things you can’t do with fertilized eggs when they are considered people?

  12. misty snyder Says:

    Dr. Hymie Gordon, Chairman, Department of Genetics at the Mayo Clinic states, “By all criteria of modern molecular biology, life is present from the moment of conception.” Dr. Jerome Lejeune, “The Father of Modern Genetics” states, “To accept the fact that after fertilization has taken place a new human has come into being is no longer a matter of taste or opinion…it is plain experimental evidence.” Dr. Albert Liley, the renowned physiologist known as the “Father of Fetology” states, “Biologically, at no stage of development can we subscribe to the view that the unborn child is a mere appendage of the mother. Genetically, the mother and baby are separate individuals from conception.”

    Whether the amendment is true or not should be our basis for voting, not what we think it may or may not do. Our laws should be based on truth not pragmatism.The amendment in and of itself does not make laws. It defines a word in our state constitution, and this should affect our laws.

    Life begins at conception. If we decide to distinguish between the beginning of human life and the beginning of “personhood”, I would like to know on what basis the decision would be made. We have killed 53 million babies. If we loose something to stop this, so be it. (In saying that, I do not intend to lend credence to the hypothetical outcomes of the amendment.) If you say that you want abortion to end, here is your opportunity. If you think there is a better way, please remember that for 38 years ways other than declaring the personhood of the unborn have been tried, and 53 million lives later here we are…..

    As an aside, I would hope that a law school at a Christian college would teach that law should be based in truth, biblical truth.

  13. Alfred Martin Says:

    Very well said, Misty. I may steal it if that’s alright. I agree that there are implications, but the mothers that this would supposedly be bad for, if it is at all, are a miniscule percentage of the millions of lives saved if abortion were outlawed.

  14. Anna Says:

    Contraception (which refers to the prevention of fertilization) includes barrier methods, such as condoms or diaphragm, injectable contraceptives, and hormonal contraception, also known as oral contraception or the pill. IUDs work after fertilization, and before implantation, which could be outlawed under amendment 26. In America, 62% of the 62 million women aged 15–44 are currently using some method of birth control and 31% are infertile. Only 5.5% of those using a prevention method choose IUD, the use of which in Mississippi is less than in any other state.
    I said all this to say, Amendment 26 will not have a significant impact on the use of birth control.

  15. Travis Says:

    The language of Amendment 26 does not “outlaw abortion”. It simply gives an unborn child the same rights as any other person. A doctor has a duty to save this child’s life, as well as the life of the mother. As mentioned in the article, the law will not prohibit saving the life of a mother during an ectopic or otherwise life-threatening pregnancy.
    If the amendment is passed, miscarriages can be treated as death by natural causes, and will not require an extensive amount of time or money. As for IVF, only non-injected fertilized eggs would be subject to the amendment. But personally, I believe that saving the lives of millions of aborted children is worth the sacrifice of not offering the procedure.
    This amendment is about doing what is right, not what is convenient.

  16. Mercer & Shorter, Mississippi Baptists & Personhood and Celebrating the Reformation | the big daddy weave Says:

    [...] Convention’s  (MBC) support of the controversial Personhood Amendment.  This amendment, according to a law professor at (ironically) MBC-supported Mississippi College, would likely outlaw not only abortion but also [...]

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