The Mississippi Personhood Amendment

Current Status

On November 8th, 2011, Mississippi voters will decide whether to add an amendment to the Mississippi State Constitution. The text of the ballot referendum will read:

Initiative #26 would amend the Mississippi Constitution to define the word "person" or "persons", as those terms are used in Article III of the state constitution, to include every human being from the moment of fertilization, cloning, or the functional equivalent thereof.

The language of the proposed new Article III, Section 33 would be as follows:

Section 33. Person defined. As used in this Article III of the state constitution, "The term 'person' or 'persons' shall include every human being from the moment of fertilization, cloning, or the functional equivalent thereof."

Passage of this initiative, which seems likely, could have a profound effect on civil liberties, both in Mississippi and nationally.

Background

The seeds of state-level personhood-definition legislation were planted in the original Roe v. Wade decision itself, which reads in part:

In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth ... In short, the unborn have never been recognized in the law as persons in the whole sense.

In 2007, Kristi Burton, a 21-year-old Colorado student, formulated an idea to pass a state constitutional referendum to establish a legal tradition of stating that life begins at fertilization in an effort to overturn Roe v. Wade. Co-founding an organization called Colorado for Equal Rights, she successfully got Colorado Amendment 48 - defining life as beginning "from the moment of fertilization" - on the 2008 ballot, where it was soundly defeated. The similar Colorado Amendment 62, also known as the Colorado Fetal Personhood Amendment, appeared on the 2010 ballot and met the same fate. But the movement to pass a personhood amendment in Colorado became a national movement to pass similar amendments in more socially conservative states.

In 2007, this movement attracted the attention of Les Riley, an ultraconservative Mississippi activist who was, at the time, running as a third-party candidate for agriculture commissioner. After unsuccessfully attempting to get the Personhood Amendment on the 2007 ballot, he made a more serious attempt in 2011 - and, with the support of major-party statewide politicians, gained enough signatures to succeed.

Implications for Abortion

Because the Mississippi Personhood Amendment makes no exception in cases of rape, incest, or to save the life of the pregnant woman, all abortions would be classified as forms of homicide. This would include abortions performed to terminate non-viable ectopic pregnancies (the leading cause of first-trimester maternal mortality). As Mississippi parent Stacey Spiehler observes:

Will they allow [abortion of an ectopic pregnancy] at the point of diagnosis, when a detectable heartbeat can still be found, or at some later point? Since some ectopic pregnancies end naturally in miscarriage, will the Mississippi Legislature allow for methotrexate, or will we take El Salvador's solidly pro-life lead and wait until the fallopian tube ruptures before performing surgery?

Having observed a Mississippi House Public Health and Human Services Committee meeting in which a purported expert repeatedly mispronounced "uterus" and described a nonsensical mechanism of action for birth control as legislators looked on and nodded, I doubt many of them know - or are interested in learning - what an ectopic pregnancy is.

Implications for Emergency Contraception/Plan B/The Morning-After Pill

Because the Mississippi Personhood Amendment defines personhood as beginning at fertilization, which technically takes place several days prior to pregnancy, it would most likely constitute just as much of a ban on emergency contraception as abortion.

Implications for Intrauterine Devices (IUDs)

Because IUDs prevent pregnancy in part by creating a uterine environment that is not hospitable to the fertilized egg, IUDs would cause the destruction of persons, as defined under the amendment.

Implications for the Birth Control Pill

Because birth control pills also alter the uterine environment in a way that discourages implantation of a fertilized egg, and because high doses of some birth control pills constitute emergency contraception, they could be subject to criminalization.

Implications for Miscarriages

The criminalization of miscarriages has already become a problem, as National Advocates for Pregnant Women (NAPW) has documented. The Mississippi Personhood Amendment would clearly define miscarriages as constituting deaths of human persons, which would necessitate criminal homicide investigations. In cases involving accidents, medication, chemotherapy, or other factors that could contribute to the likelihood of a miscarriage, women could be charged with manslaughter for recklessly endangering a blastocyst, embryo, or fetus.

Implications for Healthy Pregnancies

Because 60 to 80 percent of fertilized eggs are naturally rejected by the uterus, the normal reproductive physiology of women would be redefined as primarily homicidal. All fertile women who have unprotected vaginal intercourse with fertile men would, under the definition of personhood given in the amendment, be guilty of an untold number of homicides (a safe estimate is three to four homicides per live birth, not counting miscarriages).

Implications for In-Vitro Fertilization and Stem Cell Research

Any technology that involves potential harm to a fertilized egg, embryo, or fetus would be classified as threatening the life of a person under the terms of this amendment. This would logically seem to ban all embryo-freezing and embryonic stem cell research, among other practices.

What Will Happen Next?

If the amendment passes, a legal challenge seems probable - but because no state has passed a personhood amendment, it is not clear what form the legal challenge might take.