Would Mississippi’s “personhood” Amendment Outlaw Birth Control?

Science, technology, and life.
Nov. 7 2011 10:58 AM

Mississippi Birthing

Would Mississippi’s embryonic “personhood” amendment outlaw birth control? Apparently so.

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Will hormonal contraceptives be banned by Mississippi's proposed "personhood" amendment?

Photograph by Kevork Djansezian/Getty Images.

Tomorrow, Mississippians will vote on whether to amend their state constitution to declare that embryos are persons. The ballot measure, known as Proposition 26, asks: “Should the term 'person' be defined to include every human being from the moment of fertilization, cloning, or the equivalent thereof?” Organizers and supporters of the measure are pushing similar amendments in other states, which wouldn’t overturn Roe v. Wade. But their ultimate target is a personhood amendment to the U.S. Constitution, which would supersede Roe and make abortion illegal nationwide.

William Saletan William Saletan

Will Saletan writes about politics, science, technology, and other stuff for Slate. He’s the author of Bearing Right.

What else would it do? Let’s look at what leaders of the Yes on 26 campaign have said.

1. Birth control. Two months ago, Dr. Freda Bush, a spokeswoman for the campaign, delivered this prepared statement at a press conference: “Drugs such as RU486, which allow a baby to be conceived and then expelled, will be banned.” That’s a very broad rule, because in theory, any drug or device that makes the uterine lining less hospitable to implantation allows a conceived embryo to be expelled. On its Web site, Yes on 26 confirms that this rule covers some IUDs and oral contraceptives: “We are opposed to those birth control methods which act as abortifacients. These could include forms of the pill which act to prevent implantation of the newly formed human into the lining of the womb; forms of the IUD, which can act the same …” Pro-Life Mississippi, a leader of the Yes on 26 coalition, says that as part of the amendment’s enabling legislation, “the Legislature should act to prohibit chemicals and devices that kill the tiniest boys and girls after fertilization. This would include RU-486 and IUD's.”

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All of these statements, by their wording (“allow,” “can act”) and the birth-control methods they include, imply that theoretical mechanisms of action, not just demonstrated effects, will be used to judge what counts as an abortifacient. That’s crucial, because oral contraceptives, as well as morning-after pills and hormone-releasing IUDs, would be prohibited under the theoretical standard.

2. IVF. Yes on 26 says the amendment “would not allow unused embryos to be destroyed” in IVF. Taken literally, this would include freezing the embryo in circumstances where it’s unlikely to survive the freezing and thawing process. After all, anyone who did this to a born person would be prosecuted. And since fatal abandonment of a born child is against the law, the same rule would apply to creation and abandonment of an embryo. So while IVF would be permitted in principle, the doctor and the couple would be held legally responsible for sustaining all embryos created in the process. Under these circumstances, no one would practice IVF in Mississippi.

3. Life-threatening pregnancy. Yes on 26 says that under the amendment,

[T]he fetus' right to life is not greater than the mother's right to life. Both would be equal. If both lives cannot be saved, then the doctor could save the mother's life even if the fetus dies. … [A] doctor may help a woman with a life-threatening pregnancy even if the fetus dies as long as his intent was to save the mother.

Note the language: A doctor may help the woman. He could choose to save her rather than the embryo. Alternatively, under the principle of equality, he could choose to save the embryo and let the woman die—and the amendment would legally protect him. This rule would apply to a woman who seeks chemotherapy or radiation that might kill her cancer but also her fetus. It might also apply to ectopic pregnancy.

4. Miscarriage. Yes on 26 asks: “Will Personhood result in criminal prosecution of a woman who suffers a miscarriage?” It says no, because the amendment “will not make having a miscarriage a crime.” But look closely at those two formulations. They aren’t the same. A woman who suffers a miscarriage would be prosecuted not because she had a miscarriage, but because police and prosecutors suspect she might have had an abortion. You would certainly be investigated if your born child disappeared and you said it had died in an accident.

5. Stem-cell research. On the Yes on 26 website, Stephen Crampton, the amendment’s primary author, explains that current Mississippi law permits “embryonic stem cell research, whereby humans are created artificially only to have their stem cells ‘harvested’ for profit, which inevitably causes the death of the embryo. The Personhood Amendment would effectively ban this unholy practice.”

6. You name it. Yes on 26 asks: “Doesn’t the Personhood ballot language leave unanswered questions?” It responds in the affirmative: “Personhood is a constitutional definition that establishes a principle. It does not attempt to set policy and procedures for every situation.” A lawyer involved in the Yes on 26 campaign says, "The only clear thing that will happen is that abortion itself will be illegal." Beyond that, legislators, judges, and district attorneys will be empowered to implement personhood as they see fit. Will homicide laws apply to embryo destruction? Will drinking alcohol while pregnant be prosecuted as child endangerment? If the ballot measure passes, we’ll find out later.

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