Next week, Mississippi voters will decide whether to convey legal personhood on human beings from inception of the embryo after the completion of fertilization. From the NPR story:
Next week Mississippi voters will decide whether to pass a constitutional amendment that redefines a person. Under the proposal, fertilized human eggs would be considered human beings, which would ban all abortions in the state. But abortion-rights activists say it would also limit contraception and threaten fertility treatments.
Well, embryos and fetuses are unquestionably human beings biologically. The real question is whether unborn lives are to be considered part of the moral community, which is the meaning of “human being” as used in the story. And I am not sure this measure would “redefine” personhood, so much as define it. But I digress.
What would be the legal impact of passing the law?
The measure would ban abortion with no exceptions for rape or incest, but those who oppose it say it’s about much more. They contend the language is so broad and vague it could ban some forms of birth control like IUDs and the morning-after pill. They also say it could affect how
I think it would actually have far less of an impact than proponents hope and opponents fear. First, any attempt to outlaw abortion would be thrown out as unconstitutional within five minutes of the lawsuit hitting the court. The abortion constitutional license is not based on the lack of personhood of the fetus so much as the personal autonomy of the mother. Ditto any attempt to outlaw contraception or early pregnancy abortifacients. There is just no chance the law’s provision will prevail over well settled federal constitutional law as set forth in many U.S. Supreme Court decisions.
Many think the law would just be thrown out as unconstitutional. They are probably right, but I don’t think it should be. Why shouldn’t a state be able to define when human life becomes a member of the moral community in cases that do not impact on a woman’s personal autonomy? After all, in such cases there is no conflict between the value of life versus the right to “choice.”
Thus, I think a personhood law could prohibit destroying embryos for use, say, in embryonic stem cell research, since no woman is being forced to—or prevented from—doing anything with her body. After all, a few states already bar embryonic stem cell research and federal law prohibits live fetal experiments, so what is the difference? And if we look overseas, Germany, for one, prohibits such research-oriented embryo destruction, and it is hardly alone.
On the other hand. I don’t see how a personhood law could prevent the creation of new “persons” via IVF. However, it could possibly restrict the number of embryos created at one time and require that all such new persons be implanted, as Italy has. That would be beneficial, I think, as the Wild Wild West IVF culture needs to be regulated. Such a law could also impact how unimplanted persons are dealt with. The personhood law would also permit feticide to be treated legally as murder in non abortion circumstances, an approach already permitted in several states.
Still, chances are, the courts will throw the entire statute out if it passes—even in circumstances that don’t impinge on personal autonomy. Why might that be? The law doesn’t only reflect our values, it molds them. A law that gave full moral and legal inclusion to unborn life would be profoundly subversive to a reigning social order that not only doesn’t wish to include embryos and fetuses in the moral community, but wants to kick certain categories of born humans out of membership (even as some seek to expand moral inclusion to flora and fauna). We can’t have that!
Until recently, social forces were pushing for greater inclusion in the human moral community. We now see efforts to restrict membership. This measure would be at least a symbolic blow against the running cultural tide. For that reason alone, I hope the measure passes.