Mississippi is considering a constitutional amendment that would effectively ban all abortions, in the most direct state challenge yet to the Roe v. Wade precedent.
The proposal, called Amendment 26, would declare fertilized eggs to be legal persons, meaning any action that destroyed a fertilized egg -- abortion and even the use of some types of contraceptives -- would be punishable as murder.
There would be no exceptions for rape or incest; the only circumstance under which abortion would be legal would be to save a woman's life, and opponents of the amendment question whether even that would be possible.
It is unjust and inaccurate to classify certain human beings as 'non-persons,' a Web site promoting the amendment says. Unborn human beings are persons, and as persons they deserve full legal protection in the state of Mississippi.
The new definition might also affect the legality of some forms of birth control and in vitro fertilization, depending on how the courts interpreted it.
Voters in Colorado rejected a similar amendment in 2008 and again in 2010, but the amendment has a better chance of passing in Mississippi, where most voters oppose abortion. The state already has heavy restrictions on abortion, and there is only one clinic in all of Mississippi that performs the procedure.
Several prominent conservative groups, including the American Family Association and the Family Research Council, have endorsed it, as have both the Republican and Democratic candidates for governor. Meanwhile, a coalition of other groups -- including Planned Parenthood, the American Civil Liberties Union and several medical organizations -- has mobilized to oppose it.
If ratified, the amendment would almost certainly face legal challenges. Supporters hope that this would eventually lead the Supreme Court to reconsider the landmark 1973 decision.
It is a risky strategy, though, because if the Supreme Court found Amendment 26 unconstitutional, it would reaffirm the Roe v. Wade precedent and potentially set the anti-abortion movement back years.
Is a Fertilized Egg a Person?
Doctors in Mississippi disagreed on whether it made scientific sense to give a fertilized egg personhood rights.
Eric Webb, an obstetrician in Tupelo, Miss., said life was life and should always be protected. With the union of the egg and sperm, that is life, and genetically human, he told The New York Times.
But most medical organizations disagreed. The Mississippi State Medical Association, the Mississippi Nurses Association, the American Society for Reproductive Medicine and the Mississippi chapter of the American Congress of Obstetricians and Gynecologists have all spoken out against the amendment, with many criticizing its premise.
A woman does not automatically become pregnant when sperm meets egg, Sean Tipton, a spokesman for the American Society for Reproductive Medicine, told the International Business Times. In fact, most fertilized eggs never attach to the uterine lining; they are simply expelled during menstruation.
Amendment 26, he said, is scientifically imprecise to the point of being nonsensical.
What Would Be Legal?
Proponents of Amendment 26 say that it would only prohibit abortion, leaving contraception, in vitro fertilization and other reproductive services intact.
The group behind the amendment, Yes on 26, responds to several criticisms on its Web site, including concerns that defining fertilized eggs as people could make some forms of birth control illegal and endanger women who have life-threatening complications during pregnancy.
The Personhood Amendment will ban the use of birth control methods which allow a baby to be conceived and then expelled, the Web site says, referring to abortifacients like RU-486, which are used to terminate early-term pregnancies without surgery. However, many other birth control methods actually prevent conception. These would remain available.
Most forms of birth control work by preventing ovulation and thus conception, but some forms, like intrauterine devices (IUDs), can also prevent a fertilized egg from implanting in a woman's uterus. Those types of birth control would be illegal under Amendment 26, as would the morning-after pill.
The Web site also addresses the concern that Amendment 26 would restrict in vitro fertilization, which involves creating more embryos than will actually be implanted into a woman's uterus and freezing the ones that are not needed in the short term. In vitro fertilization would still be legal, proponents of the amendment say, but the law would not allow unused embryos to be destroyed.
But effective in vitro fertilization necessarily involves creating multiple embryos and freezing the unused ones. One embryo is implanted in the woman's uterus at a time, and if the pregnancy doesn't take, fertility doctors try again with another embryo. If doctors cannot freeze the extra embryos, in vitro fertilization would be so severely restricted as to not be practical, Stan Flint, a managing partner for Southern Strategy Group, a lobbying firm that is advising the anti-Amendment-26 group Mississippians for Healthy Families, told IBTimes.
Tipton added, This measure would not prohibit in vitro fertilization -- it would only prohibit doing it correctly.
Yes on 26 officials did not respond to a request for further comment.
Exceptions to Save Lives
The most important question, opponents of Amendment 26 said, is whether it would put women's health at risk.
The law would permit abortions if necessary to save a woman's life -- but those situations aren't always black and white. A woman may be likely but not certain to die from a pregnancy, or she might be at risk of long-term health problems even if her life is not in danger. Opponents of the amendment said doctors should not have to worry about criminal charges when making those judgment calls.
This amendment could create a legal quagmire for any doctor who needed to provide medical care to a pregnant woman if that care might endanger an ongoing pregnancy, as it could criminalize any conduct that might harm a fetus, the Center for Reproductive Rights, a legal advocacy organization, said in a press release.
Yes on 26 officials vehemently deny that the amendment would put women's lives at risk.
If a woman had a life-threatening complication, like an ectopic pregnancy or eclampsia, the doctor would be required to save both lives if possible, the group says on its Web site. But in the hard cases where the baby is unviable, the doctor would save the life of the mother.
Tipton said he was not comforted by that assertion, nor by the statements Yes on 26 made about birth control and in vitro fertilization.
If passed, the amendment would be subject to judicial interpretations, and these all may be subject to the political aspirations of some criminal prosecutor in Mississippi, Tipton said. We are unwilling to risk patient lives to those kinds of factors.
Even if proponents of the amendment say that it would not apply if a woman's life were in danger, there is no language in the amendment to that effect, which makes the exception legally unenforceable, Flint said.
Zygotes, embryos and fetuses would be people under the amendment, and we cannot kill people in Mississippi, he said. So if anything causes a zygote or a fertilized egg to cease to exist, then it certainly would be considered a human life and would be outlawed. Your doctor could be arrested for murder if he saves your life.
Amendment Violates Roe v. Wade
The moral questions are compounded by legal questions, because in the 1973 Roe v. Wade decision, the Supreme Court ruled that the Constitution provided a right to privacy and that this right included the choice to have an abortion up until the point of viability, when a fetus becomes capable of surviving outside the womb.
This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy, Justice Harry Blackmun wrote in the 7-2 ruling.
Since then, many states have restricted abortion through various laws that, for example, require women to wait a certain length of time or to look at an ultrasound of their fetus before having an abortion. Since 1973, abortion rights have slowly narrowed as states whose voters or leaders oppose abortion test how many restrictions they can get away with.
But the proposed amendment in Mississippi is the boldest yet, because it does not just restrict the circumstances under which a woman can choose to have an abortion -- it eliminates legal abortion altogether.
The wording is unequivocal -- the term 'person' or 'persons' shall include every human being from the moment of fertilization, cloning or the functional equivalent thereof -- and opponents say that is unconstitutional.
The Supreme Court of the United States has clearly held that constitutional rights do not extend to fetuses or embryos and that neither legislatures nor courts can rely on a particular theory of when life begins to prohibit a woman from exercising her right to terminate a pregnancy prior to fetal viability, the Center for Reproductive Rights press release said. Such a law is so extreme, no state has ever enacted one like it.
Tipton accused Yes on 26 of trying to outlaw abortion with a deliberately confusing law that could apply to many things besides abortion.
If the voters in Mississippi want to say abortion's going to be illegal, they should do that directly, he said. We would oppose that, but it would be a cleaner fight. This [amendment] is so convoluted that it makes it difficult to even be able to grasp the full implications if it should pass.
The proponents of the amendment are a fringe element trying to shove their morals, their religion and their government down our throat, Flint said, and we in Mississippi don't like that.
A Counterproductive Strategy?
Even some staunch opponents of abortion say that Yes on 26 is going about this the wrong way by contradicting Roe v. Wade so blatantly.
Previous laws have tried to chip around the edges of the ruling, creating regulations that are onerous enough to be de facto bans on abortion but do not outright criminalize the procedure. Those laws are extremely effective in restricting access to abortion, but they still have a chance of withstanding court challenges.
The Mississippi amendment, though, directly violates the key holding of Roe v. Wade: that a woman has the right to have an abortion until the fetus is viable. It would be very difficult for a federal court to find it constitutional while Roe v. Wade stands, and it is impossible to say whether the composition of the Supreme Court has changed enough since 1973 for it to overturn one of the biggest landmark decisions in its history.
From the standpoint of protecting unborn lives, it's utterly futile, James Bopp Jr., the general counsel for National Right to Life, an anti-abortion organization, told The New York Times. It has the grave risk that if it did get to the Supreme Court, the court would write an even more extreme abortion policy.
Local Catholic leaders are opposing the amendment for the same reason.
The Roman Catholic Church and her bishops are unequivocally pro-life; however, we do not always publicly support every initiative that comes before us in the name of pro-life, Bishop Joseph Latino of the diocese in Jackson, Miss., said in a press release last week. We have committed ourselves to working for a federal amendment and feel the push for a state amendment could ultimately harm our efforts to overturn Roe v. Wade.
During oral arguments for Roe v. Wade, Chief Justice Warren Burger asked Sarah Weddington, one of the attorneys for Roe, whether she thought a state would be within its constitutional rights to declare, by statute, that a fetus is a person for all constitutional purposes.
Weddington responded, The state could obviously adopt that kind of statute, and then it would have to be adjudicated.
Proponents of the amendment said they had chosen their strategy very deliberately based on that exchange. They believe there is a chance the Supreme Court would uphold the Mississippi amendment, thus overturning Roe v. Wade and paving the way for a federal amendment to give fertilized eggs, embryos and fetuses full personhood rights.
I view it as transformative, Brad Prewitt, a lawyer and the executive director of Yes on 26, told The New York Times. Personhood is bigger than just shutting abortion clinics. It's an opportunity for people to say that we're made in the image of God.
Contact Maggie Astor at firstname.lastname@example.org.