If Mississippians vote to pass an unprecedented initiative on Tuesday that would declare a fertilized egg a legal person under the state Constitution, nobody — including the authors of the initiative — knows exactly how that law would be interpreted and enforced. But legal and medical experts are concerned that the “personhood” amendment could spur a litany of expensive court battles, bogus lawsuits and moral and political conundrums beyond the scope of women’s choice.
The somewhat vague question facing Mississippi voters at the ballots is: Should an undeveloped embryo have the same legal rights as a person? If the people answer yes, then state lawmakers will be faced with the challenge of figuring out what Proposition 26 means for practical purposes and how to implement it.
The process of interpreting and implementing the amendment is likely to be complicated and fraught with legal challenges, considering the word “person” appears more than 9,000 times in the Mississippi constitution. The law would unequivocally ban abortion, with no exceptions for rape, incest, or life of the mother, but advocates on both sides argue about the legal implications beyond abortion. The initiative could be interpreted to ban emergency contraception as well as the regular birth control pill, which can both affect a fertilized egg’s ability to attach to the uterus. It could also complicate the legality of in vitro fertilization, which can result in a number of unused embryos, and stem cell research.
The “personhood” amendment raises other, murkier questions: If every fetus is considered a person, does this affect voter districting? Would a woman who is three weeks pregnant be able to claim her fetus as a dependent on federal tax forms, or in claims for government assistance? If a woman who doesn’t know she’s pregnant engages in some negligent activity that leads to a miscarriage, could someone prosecute her on behalf of the embryo?
“This law can go to the silliest and most radical extreme if you take it literally,” said Michele Alexandre, a civil rights law professor at the University of Mississippi. “If this passes, all heads will turn to the legislature to figure out how to implement it, but the law gives no guidance as to how to do that. It can reach into so many spheres — the combinations are endless.”
“To try to figure out what it would mean to impose this standard definition that always includes an egg, embryo and fetus could have consequences we couldn’t even speculate about, because we haven’t thought of them,” said Alexa Kolbi-Molinas, staff attorney for the American Civil Liberties Union.
Some supporters of the initiative are trusting Mississippi lawmakers to figure out what “personhood” will look like on the books.
“There will be some things that’ll have to be worked out at a later date,” Greg Sanders, a spokesperson for the “Yes on 26” campaign, told HuffPost. “As you well know, there will be more than likely a stay of who knows how many months to come up with common sense legislation, but plain and simple this seeks to establish human life in the womb.”
A number of doctors are expressing their fear of potential lawsuits.
“I assume some poor patient or doctor or both will have to be brought to court and made an example of so this case can rise through the courts to our nation’s Supreme Court,” said Dr. Wayne Slocum, head of the Mississippi section of the American College of Obstetricians and Gynecologists. “The fear of litigation is real, and I can tell you that the physicians feel that, and it’s our fear that this passes.”
The amendment could subject both women and doctors to an array of criminal and civil suits. For instance, a doctor could be prosecuted for trying to save a woman with ectopic pregnancy, an abnormal pregnancy which occurs outside the uterus and is the leading cause of pregnancy-related deaths. It could require coroners to investigate miscarriages, which are reported to occur in at least a quarter of pregnancies, and it could make it possible for someone to sue on behalf of the egg that didn’t implant because the woman used birth control.
Slocum said he considers himself pro-life, but he can’t support the amendment when he considers all of its possible legal consequences and the difficult situations that could arise.
“Imagine, for a moment, an estranged husband of a pregnant woman that suffers from some kind of illness that necessitates the delivery of a preterm child, be it breast cancer or elevated blood pressure,” he said. “Certainly, the rights of the preterm child need to be considered, and I assure you I consider these and my fellow physicians consider these now, without this amendment. But I would argue that this amendment would give this estranged husband even more of a legal argument to halt any treatment aimed at saving life of the mom at the expense of unborn. I see no good to come from that.”
The personhood initiative is so legally problematic that there are already people across the nation who are “lined up to challenge it,” because it violates a number of Supreme Court precedents, said Alexandre. It would also make Mississippi the first state to directly challenge Roe v. Wade, the 1973 Supreme Court decision that prevents states from banning abortion before the fetus would viable outside the womb. The initiative could additionally challenge Griswald v. Connecticut, which declared a state law banning contraceptives unconstitutional, and Planned Parenthood v. Casey, which prevents states from passing abortion restrictions that cast “undue burden” on a woman’s ability to obtain an abortion.
Les Riley, the leader of Mississippi’s personhood movement, said he is hoping challengers will take this law all the way up to the Supreme Court. The Roe v. Wade decision, he argued, was handed down at a time when scientists were less clear about the moment when life begins, and now it is due for an update.
“We think that God has already told us when life begins, and science has confirmed it, and the court has just not dealt with it,” Riley told HuffPost. “We hope the Mississippi voters will force them to take another look at that decision.”
Opponents of the initiative say it is a waste of state money and resources, because it has no chance of being allowed to stand.
“Time and time again, the Supreme Court has struck down laws that are too vague, laws that go overboard, laws that have consequences outside of what the reach of that law should be,” Alexandre said. “It’s hard to imagine the Supreme Court would find this particular language legal.”
While a number of Mississippi lawmakers have expressed concerns about the vagueness and potential consequences of the personhood amendment, the vast majority of them are publicly supporting it. The state’s Republican governor, Haley Barbour, told Chuck Todd on MSNBC last week that he had concerns about the initiative’s ambiguity and its ramifications for women’s health.
“I believe life begins at conception,” Barbour said. “Unfortunately, this personhood amendment doesn’t say that. It says life begins at fertilization, or cloning, or the functional equivalent thereof. That ambiguity is striking a lot of pro-life people here as concerning. And I’m talking about people that are very outspokenly pro-life.”
“I am concerned about some of the ramifications on in vitro fertilization and [ectopic] pregnancies where pregnancies [occur] outside the uterus and [in] the fallopian tubes,” he continued. “That concerns me, I have to just say it.”
The following day, Barbour voted for the initiative using an absentee ballot.
Mississippi Democrats have been echoing Barbour’s sentiment. A spokesperson for Johnny Dupree, the Democratic candidate for governor of Mississippi, said in a statement that “while [Dupree] has concerns about some of the ramifications, such as on in-vitro fertilization and birth control, he ultimately supports the amendment because he believes life begins at conception.”
Democratic state Sen. Bob Dearing told HuffPost he would likely vote for the initiative as well, despite the fact that he knows it’s legally problematic. “It’s going to be met with a court challenge,” he said. “You know that, and I know that.”
Mississippi voters, so far, are almost perfectly divided on the issue. According to a new Public Policy Polling survey, 45 percent of voters support the initiative and 44 percent oppose it.
The one thing many agree on is that if the initiative passes, Mississippi should brace for legal mayhem.
“It would definitely take a while to work out all the lawsuits,” Alexandre said, “but in the meantime, how many women would be hurt?”