Day 14 of 40 Days for Life Blogathon

Guest post from future husband/on hand law student: 

Often times legislatures and people push for and pass laws that have unintended consequences, many of which were not foreseeable when they were passed. For instance in the State of Ohio in 2004 we passed an amendment to the state constitution banning Gay Marriage. This action seemingly could hardly have any negative consequences, seeing as Gay Marriage was already illegal. However, it suddenly ensured that any unmarried couple living together could not file for Domestic Violence charges. This prevented many courts from offering protection to women and forcing them to grant a lower charge.

In a similar vein, states across the country are attempting to pass “Personhood Amendments.” The most vocal of this has been the campaign in Mississippi. The actual text of the amendment “The term 'person' or 'persons' shall include every human being from the moment of fertilization, cloning or the functional equivalent thereof” is clearly designed to prevent abortion.

Obviously, abortion is an extremely divisive issue with both sides arguing extensively against the other. However before we jump of a cliff, perhaps we should think about the results of this bill. First, this bill is facially unconstitutional, as it flies directly in the face of the U.S. Constitution’s 14th Amendment Right to Privacy as established in Planned Parenthood v. Casey 505 U.S. 833 (1992) and Roe v. Wade, 410 U.S. 113 (1973). Furthermore, it is important to recognize that the U.S. Constitution is supreme to that of any state, and that states laws in violation will be overturned (See U.S. Constituion Article VI, Clause 2). While their website has provided an interesting memo on the Legality of the Amendment, this Memo refers mostly to dissents in cases, and letters with almost no legal precedent. However, that is not the real problem of this bill.

Perhaps the most negative aspect of this bill is the confusion concerning the phrase “moment of fertilization.” While it seems to be an extremely valid argument for those who state “life begins at conception,” This is contrary to the American College of Obstetricians and Gynecologists, who mostly presume that life begins with implantation. (Fertilization of the egg occurs in the fallopian tubes, and then the egg must implant in the Uterus, at which point it becomes a Blastocyst. The full fetal development cycle.) This is because it is possible that a fertilized egg will not implant, in fact this has been found to occur in 30-50% of fertilized eggs. Thus, women who pass an egg, through no fault of their own, may be guilty of murder, or reckless manslaughter. Or a woman who is unaware of her pregnancy could be held guilty of reckless endangerment for working too hard, drinking, driving dangerously.

There is no legal precedent in how to treat a fetus as a person. Thus, even once implantation has occurred, it is unclear what the rights of the fetus are. In the law no one person has rights over another. Therefore, under this law there would be no medical exemption for the life of the mother. If the fetus is endangering the life of the mother, could the fetus be taken to trial for attempted murder? Do all the child protection laws apply to a fetus? If the mother lives in squalor, isn’t eating right, or misses a doctor appointment, can she be locked up? How will child services take the child? If a pregnant woman engages in a crime is the fetus and accomplice? There are literally a myriad of laws that will have to be decided and ultimately would likely return us to our current legal structure of diminished rights for a fetus to that of a mother.

Another problem is that these bans could effectively ban all forms of birth control, except for barrier methods. Many forms of birth control also prevent implantation by thinning the uterine lining. While many pro-life groups often call for a ban on birth control (in violation of the case Griswold v. Connecticut, 381 U.S. 479 (1965).) I doubt many people in the state of Mississippi, or the country in general would appreciate being arrested for attempting to take a prescribed medicine from their doctor, particularly if it was necessary for  medical reasons.

Finally, and this is almost embraced by their website, this law will lead to an extremely costly period of legal litigation over complicated issues. It will require numerous new laws and a fundamental change in our understanding of many issues. Although in reality, this would be struck down as facially unconstitutional by a Federal Judge, if we imagine that Mississippi exists in a legal vacuum and could pass this legislation, what would happen? The result would be a series of cases, in which the parameters of the bill would be established. The Supreme Court of Mississippi, would have to make a choice, they would either have to establish that a fetus had equal rights to a person or diminished rights. If they established equal rights, the ridiculous legal consequences posed above would occur. If they established diminished rights, they would have to create a separate class of citizenship for them. They would then create exceptions for their rights in situations of the Mother’s life or perhaps in cases of rape and incest. Then they would limit the application of the law for a certain time period. They may in fact pick a period when the child could survive outside of the womb, and would then call this “post-viability.” Sound familiar? It is the exact line of reasoning that we have already established and would likely occur again. Thus we will spend 10-20 years, and millions on litigation in creating the same laws we currently have.

While it can occasionally be said to be necessary to change laws, ultimately their goal is to outlaw abortion. Similar to a person trying to prevent a house fire, by tearing down their house, they are destroying all autonomy of a woman—to establish the rights of a child. However, the problem here of course being that one is completely dependent upon the other for life. This has never occurred before in our legal system, where we force one person to care for another because its rights are superior. The argument is instead that the fetus is superior to the mother, because the mother is forced to carry it. Unlike other circumstances where a child can be taken by the state or an elderly individual can be supported by other family, the state, or a nursing home, here we are legally requiring a woman to carry a child.

These are some of the legal consequences of this bill. While not a complete list, I hope this highlights the danger of this bill and much of the legislation that pro-life members are attempting to pass. They are greatly endangering women and their rights, and we as a country must recognize the loss of rights that will occur. As has often been stated, if pro-lifers wish to prevent abortion, perhaps they should spend more time preventing unintended pregnancy, rather than creating laws with outrageous consequences that clearly have not been thought through. Furthermore, it is ironic that this bill would ban birth control, perhaps one of the greatest keys to preventing pregnancy. Hopefully, the people of Mississippi and of many other states will recognize the danger of this bill and trust women to make their own decisions.