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Monday, October 31, 2011

Mississippi's Personhood Amendment

The NY Times has just run this op-ed I authored (along with Jonathan Wills) on Mississippi's proposed Personhood Amendment 26, which is up for a vote on November 8. Here is the initiative's official description:

Initiative #26 would amend the Mississippi Constitution to define the word 'person' or 'persons', as those terms are used in Article III of the state constitution, to include every human being from the moment of fertilization, cloning, or the functional equivalent thereof."

Jonathan and I argue in the op-ed that whether one is pro-life or pro-choice, the amendment is a bad idea because it is ambiguous in two key ways: (1) that "fertilization" could mean anything from the moment sperm penetrates egg to the moment the fertilize egg implants in the uterus (or does not, in the case of IVF embryos that are not used), thus it is unclear whether it sweeps in some forms of birth control, IVF embryo discard, and stem cell derivation along with abortion. (2) It is unclear whether the Amendment is self-executing and thus updates the criminal code among other pieces of law, or whether it instead would require legislative action to do so piece-by-piece. We argue that without a clear amendment, Mississipians can't know what they are voting for. Moreover, if courts are inclined to read the ambiguities in a way to avoid raising federal constitutional questions, even pro-life groups hoping to offer the courts an opportunity to revisit Roe may not get what they want with an ambiguous amendment.

I will have more to say about this Amendment during my blogging stint this month, but I just want to make one observation based on my experience in a public debate in Mississippi that I participated in.

Here I should make clear I am speaking only for myself, and not Jonathan:

During the debate, it felt a good deal like the pro-life groups seemed to want to have it both ways on the self-executing question when I pushed them on this during the debate. If it is not self-executing, if it just a statement of "policy" or "principle" without legal effect, it is unclear why they are pushing this amendment so hard politically and financially. They accused me of “fear mongering,” and I am too close to this to be objective on the issue, but I do harbor this fear I want to share (if not "monger"): I fear some groups are pushing an ambiguous amendment they hope they can slip by Mississippi voters by protesting against its likely implications as to IVF and abortion, only then to press the courts to rely on the amendment as having altered criminal other laws in the state once it is in effect, impacting  a good deal of reproductive practices. I am not trying to cast aspersions on the views of those supporting this amendment. I am sure their motivations are complex, heterogenous, and in some cases overdetermined. I think abortion is actually a hard question from a bioethics perspective, and understand where disagreements on the subject come from. But I found the positions they took on the self-executing question downright peculiar, and I have yet to hear a straight answer from supporters of the law that they do not think it self-executing. Until they publicly take that stand, I will continue pressing (if not "mongering") this fear.


Posted by Glenn Cohen on October 31, 2011 at 11:40 PM in Constitutional thoughts, Criminal Law, Current Affairs, Law and Politics | Permalink


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It is simply bringing the constitution in line with what science already recognizes: "By all the criteria of modern molecular biology, life is present from the moment of conception." Dr. Hymie Gordon, Chairman, Department of Genetics at the Mayo Clinic

"The only times we even question whether human beings are persons (or “truly” human) are during exploitation and injustice. During the Holocaust, in support of slavery, and to spread eugenics, for example, we have questioned whether the people exploited or abused are really, truly human. To me, that’s powerful."http://liveaction.org/blog/is-it-a-person/

AIN’T I A WOMAN? This is what Sojourner Truth asked when she gave her famous speech about the rights of black women.


Ryan Bomberger answers this question in this beautiful music video written by a man who was conceived by an act of rape:

How fortunate his mother recognized his “personhood”!

Posted by: Lifeisbeautiful | Nov 3, 2011 1:44:30 AM

Howard -- thanks for the analogy, a reporter was asking me for more examples of ballot initiatives with possible bait and switch profiles and I will now be able to point him to some.
Essay Job Opportunities -- keep up the complimentary spamming, but work on your spelling!
Jonathan -- as always thank you for enriching my thinking on this.
Ben -- I really appreciate the on-the-ground reality check, has there been any recent polling as to which direction the vote is likely to go?

Posted by: I. Glenn Cohen | Nov 1, 2011 1:17:22 PM

Thank you for this excellent piece about the ambiguities in the law. I am living with this (Chris Green is my colleague) and have two thoughts (though I don't know if either is influenced by the fact that I live here).

First, I wanted to point out a further ambiguity of the law. Although the amendment (obviously) would amend the Mississippi constitution, the only thing that will appear on the ballot is the "Ballot Title" which reads: "Should the term 'person' be defined to include every human being from the moment of fertilization, cloning, or the equivalent thereof?" That's it. So on the ballot itself, Mississippi voters are asked about changing the definition of "person," but we are not told for what purpose. Yes, people can go to the Secretary of State's website and get a further explanation, but it seems to me that the ballot should tell us what we are voting for. Of course, even if we knew from reading the ballot that this would amend the constitution, we would have the further ambiguities that you discussed in the Op Ed. Still, I still find this procedure troubling.

Second, although I know that there are many on the pro-life/Yes on 26 side here who care very deeply about outlawing abortion -- and I don't question their deeply felt convictions about the issue even though I disagree with them -- my cynical take on the initiative is that others in the Republican Party who may not care as deeply about the issue made sure that this got on the ballot in order to get the conservative base to the polls in a critical election year when we are voting for Governor, Lt. Governor, Attorney General, and, perhaps most importantly since those races are not likely to be close under any circumstances, the State House has a chance to go Republican for the first time in eons.

Posted by: Ben Cooper | Nov 1, 2011 12:26:09 PM

I have been accused of fear mongering more than once for raising issues regarding implications for certain forms of birth control and IVF. Some of that stems from a lack of understanding of human reproductive physiology, but other proponents are well aware of the significance of using "fertilization" (however defined) as opposed to say "implantation." In separate essays, Chris Green (Ole Miss law) and I give more detail regarding the concept of whether the amendment would be effectively self executing. They should be out later this week in an online companion (Supra) to the University of Mississippi Law Journal. His piece is "A Textual Analysis of the Possible Impact of Measure 26 on the Mississippi Bill of Rights," and my piece is "Measure 26: Fear Mongering, Self-Execution & Potential Implications for Birth Control."
Thanks to Glenn for allowing me to work with him on the NY Times Op-Ed.

Posted by: Jonathan Will | Nov 1, 2011 10:57:43 AM

Glen Staszewski wrote an interesting piece about 5 years ago or so on what he called the "bait-and-switch of direct democracy," in the somewhat similar context of popular referenda/initiatives to prohibit civil unions and other statuses with marriage-like qualities. Initiative proponents in Michigan similarly tried to have it both ways--in debates and other public statements they insisted on one interpretation and explicitly declaimed another interpretation, then in litigation adopted the very interpretation they had declaimed. Glen tried to formulate some legal analysis that would prevent this sort of rhetorical and strategic bait-and-switch.

Posted by: Howard Wasserman | Nov 1, 2011 1:39:30 AM

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