Amendment 26 Is A Mississippi Bad Idea

Casey Bonner, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Casey Bonner, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Our neighbor to the west and my home state, Mississippi, could become the first state to effectively ban abortions next month if many pro-life supporters have their way. On November 8th, Mississippi voters who approach the voting booth to vote for the state’s next governor will also be faced with the initiative to amend the state constitution to define “personhood” as life that begins at conception – the moment a human egg is fertilized.

The initiative, known as Amendment 26, is backed by the Colorado-based group Personhood USA. Their mission statement declares their mission to be “to serve Jesus by being an Advocate for those who can not [sic] speak for themselves, the pre-born child. We serve by starting / coordinating efforts to establish legal ‘personhood’ for pre-born children through peaceful activism, legislative efforts and ballot-access petition initiatives.” Personhood USA is currently assisting in petition initiatives in several states, including Florida, Montana, Oregon and Ohio. Several states, including Alabama, have had Personhood USA-supported bills presented in their state legislatures, but only Mississippi will have the amendment proposal on their ballots this election year. Similar amendment proposals were defeated by voters in Colorado in both 2008 and 2010.

The language that Mississippi voters will encounter on the ballot reads: “Be it Enacted by the People of the State of Mississippi: SECTION 1. Article III of the constitution of the state of Mississippi is hereby amended BY THE ADDITION OF A NEW SECTION TO READ: 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.”

Personhood USA and its Mississippi branch, Personhood Mississippi, hope to have greater success with their proposal in Mississippi, which is one of the most conservative states in the country. If Amendment 26 passes, it would define “person” to “include every human being from the moment of fertilization, cloning or the functional equivalent thereof” – which would make abortions illegal in the state, including those pregnancies that occur as a result of incest or rape.

Of course, the first question that should be asked about Amendment 26’s impact on a woman’s right to choose is “What about Roe v. Wade?”  In the well-known Supreme Court decision, the Court held that there is a fundamental due process right to decide to terminate a pregnancy, although within reason. In Roe, the majority used a strict scrutiny approach to analyze Roe’s challenge to Texas’s criminal abortion statutes. Strict scrutiny is applied when there is a fundamental right involved; in order for Texas’s statutes to survive a strict scrutiny challenge, there must have been a compelling state interest and the means used to regulate abortion must have been narrowly tailored. Texas claimed a compelling interest in ensuring patient safety and protecting prenatal life, but the Court held that a fetus is not a “person,” thus there was no real state interest in protecting the “life” of the fetus. Instead, the court held that the state may have an interest in protecting maternal life, but only at the end of the first trimester of the woman’s pregnancy. Only once the second trimester begins may the state regulate abortion.

To some, the Roe decision should be the nail in the coffin for Amendment 26.  However, Personhood Mississippi views the rationale used in Roe as the reason Amendment 26 will succeed. The Mississippi Personhood Memorandum points to two cases cited by the Court in Roe that recognize a state’s right to define “person” in a manner that is more protective of an unborn child, McGarvey v. Magee-Womens Hospital, 340 F.Supp. 751 (W.D. Pa. 1972) and Byrn v. New York City Health & Hospitals Corp., 31 N.Y.2d 194 (N.Y. 1972).

According to the Memorandum, this right of the state to define terms at its discretion will allow the state to effectively ban abortions in the state while not enacting laws that explicitly state the illegality of abortion. In fact, the Memorandum states, “It cannot be emphasized too strongly that the Amendment does nothing more than define the word ‘person.’ It does not criminalize abortion . . . .” Instead, declaring a fetus to be a person would allow the state courts or legislature to appoint the unborn a representative to advocate for the unborn in a judicial decision regarding whether the pregnancy could be terminated. However, the Memorandum sees the judicial process to terminate the pregnancy a non-issue – the Memorandum states that it would be “difficult, if not impossible to imagine a basis depriving the innocent child of life . . . .”

Oddly enough, the Memorandum also recognizes that if the Initiative passes, it will immediately be met with challenges from individuals and women’s rights groups. The group even “safely assumes” that the federal courts will find the Amendment unconstitutional under Roe. Despite the challenges and likely unconstitutional finding by a federal court, the Personhood USA remains optimistic. Keith Mason, a co-founder of Personhood USA, has said that a positive vote in Mississippi would send shock waves around the country, creating a momentum that could be used to eventually amend the U.S. Constitution.

What is curious about Personhood Mississippi’s faith in the Amendment’s ability to basically defeat the Supreme Court’s reasoning in Roe is that the group utterly ignores the Court’s holding in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). In that case, the Court upheld the following essential parts of Roe: (1) women have a right to abortion before fetal viability; (2) the state does have an interest in restricting abortions after viability; (3) the state does have interests in protecting both the life and health of the mother and the potential life of the fetus. However, unlike in Roe, the Court did not rely on a strict scrutiny test, but rather focused on the burden abortion regulations placed on women. Casey did not overturn the Roe decision, but instead re-emphasized a woman’s right to choose by ensuring that any state restrictions on her choice were not so burdensome as to effectively eliminate her free choice. It is Casey, not Roe, that should concern Personhood advocates.

If Amendment 26 passes in Mississippi, it will be challenged not only on Roe standards and a woman’s right to abort but also under Casey’s undue burden test. Unfortunately for Personhood Mississippi, Amendment 26 probably will not withstand an undue burden examination. The objective of Amendment 26 is to effectively ban abortions in the state of Mississippi. Moreover, the current unavailability of abortions in Mississippi is probably the most burdensome restriction of all.

Nevertheless, perhaps not surprisingly, Amendment 26 has raised issues beyond a woman’s right to choose to terminate her pregnancy. One of the most contentious talking points surrounding Amendment 26 is the effect its passage would have on contraceptives and IVF. Proponents of the measure state while they do not condone the use of contraceptives, the Amendment will not outlaw “the pill.” Another pro-Amendment group, Yes on 26, states on their website that they oppose the use of contraceptives that act as abortifacients, which the group concedes could include some forms of the pill, intra-uterine devices (IUDs) and the “morning-after pill.”  Proponents oppose contraceptives such as these because they do not allow for the implantation of a fertilized egg. If “personhood” begins with fertilization, anything that deprives the “person” of life has violated its due process rights, and anyone who has caused the deprivation could be held liable.

In a similar vein, Yes on 26 promises that IVF would not be banned by the new definition, but it would place limits on the process. During in-vitro fertilization, several fertilized embryos may be created, but usually only one or two embryos are implanted in the woman, as recommended by the American Society for Reproductive Medicine. Any remaining embryos are usually frozen and stored in case the implanted embryos fail to result in a pregnancy. However, if there is a situation when embryos could or would be destroyed at the request of the parents, under Amendment 26, the parents, doctors or technicians could be held liable.

Those opposing the Amendment claim a redefinition of “personhood” would effectively ban many birth control methods, including the pill and IUDs. Parents Against MS 26 argue because many oral contraceptives change the lining of the uterus to keep a fertilized egg from implanting and developing, the new definition of personhood would keep these contraceptives from being available, even when needed for non-contraceptive medical uses. Parents against MS 26 also claims while the Amendment may not facially ban IVF, the definition of personhood would be a de facto ban on the treatment since IVF carries a risk of the destruction of embryos, whether intentional or accidental. Many university newspapers in Mississippi have published opinion articles by students against the Amendment, including an article in the Daily Mississippian, the University of Mississippi’s student newspaper. In the article, the writer wonders if the Amendment would allow women who miscarry to be prosecuted for manslaughter or even murder. While proponents of Amendment 26 denounce this theory as nothing more than a scare tactic, the logical extension of a new definition of personhood could result in such stark repercussions.

On November 8th, the voters of Mississippi will probably pass Amendment 26.  Both gubernatorial candidates have publicly backed the measure and polls conducted by the state’s major newspaper indicate that public sentiment backs the amendment.  Mississippi is widely recognized as one of the most conservative states in the U.S., as well as one of the most religious, and these superlatives will probably be the reason the Amendment passes. I think passing the Amendment will be a mistake and a waste of state resources and time.

Amendment 26 is a mistake, regardless of the good intentions behind the definition change because the repercussions extend beyond banning abortion. While advocates claim the new definition of person would not affect the availability of contraceptives or IVF, if these methods affect the existence of a fertilized egg, the definition will indeed affect contraception and IVF. Again, this is a mistake and a potentially devastating effect of the Personhood movement. Mississippi already has the highest teen pregnancy rate and highest infant mortality rate. By decreasing or even eliminating the availability of contraceptive devices, this measure could prove costly for the state and its taxpayers.

Amendment 26 will result in criminal prosecutions of women who have miscarriages, even though I agree with Yes on 26’s stance that such a claim is nothing more than a scare tactic. I also feel that Yes on 26 presents many distasteful statements of their own – including the declaration that “Planned Parenthood makes millions of dollars every year by killing babies.” Both sides have engaged in offensive smear campaigns, with both sides exaggerating the possible repercussions and ignoring the logical extensions of the plan. Even after reading countless articles and perusing websites by both advocates and opponents, I admit that I still am unsure of the real effects the new  amendment would have – other than changing the definition of “person.” My only hope for Mississippi voters is that they make an effort to discern the truth – because man, woman, mother, father, conservative, liberal, abstinent, indulgent – it will affect them and those they love.

The irony in all of this is that regardless of the outcome at the voting booth, the Amendment will not stand. Roe and Casey both held that a woman has a fundamental right to choose and that the state can place no undue burden on her rights. Absent a dramatic reversal of precedent, the long-term effects on the state will be few. Mississippi may enact Amendment 26 and it may change the reproductive rights of women in the state for a short time, but Amendment 26 is sure to be met with a multitude of legal challenges and the clear holdings of Roe and Casey should ensure women’s rights will prevail.




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