By Justin Grant
A notable furor subsided on Election Day as Amendment 26,Mississippi’s proposed constitutional amendment to redefine the definition of life, failed to pass on the ballot. But what was the uproar about? Was it really worth the national attention?
The text of the proposed amendment alone is not terribly insightful:
Be it Enacted by the People of the State of Mississippi:
SECTION 1. Article III of the constitution of the state of Mississippi is hereby amended BY THE ADDITION OF A NEW SECTION TO READ: Section 33. Person defined. As used in this Article III of the state constitution, “The term ‘person’ or ‘persons’ shall include every human being from the moment of fertilization, cloning or the functional equivalent thereof.” This initiative shall not require any additional revenue for implementation. [1]
This is a minor change to the Mississippi constitution. “Person” would simply be redefined to include fertilized fetuses (and clones, but that is a side issue). Without context, this does not seem like it is even all that important.
This was a carefully crafted piece of legislation, however, and the way the supporters of the amendment framed the issue is a fascinating look into the psychology of opponents to abortion. Below are goals cited on the Vote Yes on 26 website that passage of Amendment 26 would have accomplished:
- To ensure “all human beings . . . equal rights in our state & protection under law – regardless of their size, location or developmental stage.” [2]
To someone who is pro-choice and pro-women’s rights, this statement seems like a complete non sequitur, but framed in the mind of someone who morally opposes abortion, it makes sense. Reason and science tell us that at the moment of conception, one cell contains two pronuclei that have united 46 chromosomes. Morality and politics tell us that this one cell measuring about 100 microns [3] (or 0.0039 inches), should have “equal rights in our state.”
- “Abortion will be outlawed. Unborn children will no longer be killed ‘legally.’ Mothers in crisis will be protected from a harmful medical procedure.” [4]
The first two sentences of this statement are old hat to those that have followed the abortion debate, but the final one is shocking. Each day, over 1,500 women around the world die due to problems developed during pregnancy or occurring in childbirth. [5] Women—actual women—die, not 100 micron zygotes. 13% of these deaths are caused by so-called “unsafe abortions”—abortions performed where the procedure is outlawed, presumably with inadequate precautions and technology. [6] A lack of access to abortion causes the death of actual human beings, and women who are actually in crisis—who would die without an abortive procedure being performed—remain protected in Mississippi because Amendment 26 did not pass.
The cognitive dissonance necessary to maintain that abortion is overall harmful in the face of the available statistics seems almost mystical. But again—this is a debate with reason and science on one side, and politically-motivated morality—mostly religious—on the other. If a zygote is a person, then yes, destroying that zygote is just as bad as allowing a pregnant woman with medical complications to die.
But even in a reason vs. emotion debate, one would think that some facts would be too strong to ignore, especially when the proposed legal impact of Amendment 26 is taken to its absurd conclusion.
The National Institute of Health states that likely half of all fertilized ova simply spontaneously abort before pregnancy is even apparent, and 15-20% of women who know they are pregnant also miscarry. [7] That’s 57½-60% of pregnancies! Should the act of unprotected sex be recategorized as reckless endangerment due to the substantial risk to “human life” associated with becoming pregnant?
This is not to say that the anti-abortion side of the debate ignores science entirely, but its methodology is flawed. It chooses what bits it can find to support its position rather than taking the evidence as a whole. For years, opponents to abortion have pointed to obscure studies with poor experimental controls that indicate a link between abortion and an increased risk of later complications, including breast cancer and pregnancy problems, even claiming that their interest is in protecting women. [8][9][10] They generally ignore studies that indicate no link.
- “A legal challenge will be set up to the unconstitutional court ruling ‘Roe-v-Wade’ [sic] that allegedly ‘legalized’ abortion. Court decisions do not make law because courts are not given the authority to make law. However, when court rulings are treated like law they have the effect of law. When a court makes a horribly unjust, immoral, and unconstitutional ruling, it should not be allowed to stand in perpetuity – if so, we would still be treating some African Americans as property because of Dred Scott. No, wrong court decisions should be challenged until they are overturned. The Personhood Amendment does just that – challenge Roe-v-Wade [sic] at it’s [sic] very core.” [11]
This entire paragraph would appear to be an academic exercise in outrageous statements. First: Court decisions do make law and have for hundreds of years; this is called the common law, and is a fundamental part of our legal system. Accordingly, court rulings should be treated like law because they are law.
Second: Certainly, if citizens feel that a ruling by any court is unjust, they have the right to challenge it through legislation, but the comparison to Dred Scott [12] is absurd. Dred Scott’s influence effectively ended due to the Civil War and the 14th and 15th amendments to the federal Constitution. Recently there has been an attitude developing that federal law does not have primacy and that the states are free to do whatever they want to flout it. Former Arizona Senate President Russell Pearce’s Senate Bill 1433, the so-called “Nullification Bill,” which was intended to cancel the effect of any federal law that the Arizona legislature felt was unconstitutional, also comes to mind. [13] Amendment 26 would have been one such example, and the authors of the bill bear this fact with pride. They spin the issue by reframing judicial decisions as “not law,” but again, facts win out: Federal law has primacy, and that includes law in the form of Supreme Court decisions—or those of any federal court. Amendment 26 would not have been a challenge to Roe v. Wade; it would have been a violation of that case’s force of law.
The abortion debate is far from over. As long as reason is ignored and science continues to be treated as a cog in the political game, rather than as a free-standing, good faith effort at non-partisan conclusions based on the available, objective evidence, that debate will continue. While there are arguments to be made as to when someone has truly become human and deserves protections as such, it is clear that calling a single cell a fully human being has neither a basis in law, nor in reality.
References:
Law Journal for Social Justice 
First, let’s check the facts, then let’s check the law.
Fact 1: “Each day, over 1,500 women around the world die due to problems developed during pregnancy or occurring in childbirth. [5]”
…following footnote [5], it says: “A total of 99% of all maternal deaths occur in developing countries. . . .” It also shows a chart that between 10 and 199 maternal deaths occur each year in the United States, and lists “unsafe abortion” is the fourth most common cause.
Fact 2: “13% of these deaths are caused by so-called “unsafe abortions”—abortions performed where the procedure is outlawed, presumably with inadequate precautions and technology. [6]”
…following footnote [6], it says…absolutely nothing about the definition of “unsafe abortions.” It does not say “unsafe abortions” are performed where the procedure is outlawed. It does not say “unsafe abortions” are performed without inadequate precautions and technology. It just says “unsafe abortions” cause 13% of maternal deaths, behind bleeding, infection, and “indirect causes.” It also doesn’t say how many maternal deaths are caused by “safe abortions,” nor does it give any guidance about what portion of the other 87% of maternal deaths are due to full-term pregnancies (and in theory, preventable by abortion) or are merely due the the status of being pregnant (not preventable by abortion).
It does say only 8% are due to “obstructed labor,” but doesn’t break the other conditions down into pre-delivery and post-delivery or abortion and non-abortion.
Fact 3: “A lack of access to abortion causes the death of actual human beings, and women who are actually in crisis—who would die without an abortive procedure being performed—remain protected in Mississippi because Amendment 26 did not pass.”
…no footnote for this statistic. Dr. J.C. Willke, MD, conducted a study with this conclusion: “We now have enough definitive studies about women who’ve had abortions to totally refute any attempt by pro-abortion zealots to claim that abortion is safer than childbirth.” (http://www.christianliferesources.com/index.php?/library/view.php&articleid=1206)
So let’s put these facts in perspective. We know that somewhere between 10 and 199 women die each year in the United States due to pregnancy, but we do not know how many of those women die due to actually having childbirth. If it’s 8% due to “obstructed labor,” that’s between 0 and 15 women per year you could potentially save via the destruction of 1,310,000 fetuses. (http://www.abortiontv.com/Misc/AbortionStatistics.htm)
But wait. Not all 15 women who die of “obstructed labor” (or whatever the cause) would choose to have an abortion. Given that such a minuscule number of women actually face the death-or-abortion decision, and that it’s probably impossible that any of them could predict being in that situation ahead of time, speculation from here on out is unreliable. Nonetheless, statistics indicate that American women choose abortion roughly 3 times for every 7 live births. (http://www.johnstonsarchive.net/policy/abortion/graphusabrate.html) So of these 0 – 15 women, you’re proposing to destroy 1,310,000 fetuses to save between 0 and 4 of them.
No matter whether you say each of those 1,310,000 fetuses is a person, it is indisputable that each one will be an American citizen less than nine months after you say it. Are 1,310,000 American citizens next year worth more or less than four American citizens this year?
Enough with the fact-checking and philosophy. Now let’s check the law.
“Amendment 26 would not have been a challenge to Roe v. Wade; it would have been a violation of that case’s force of law.”
Roe v. Wade said:
“The appellee and certain amici argue that the fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument.” Roe v. Wade, 410 U.S. 113, 156-57 (1973).
I’m not sure your statement that “it is clear that calling a single cell a fully human being has neither a basis in law, nor in reality” is correct. It looks to me like there is a basis in law. Indeed, in Roe v. Wade itself. We can only speculate, of course, as to whether a state constitutional amendment establishes the “suggestion of personhood” because the amendment didn’t pass.
There’s a lot that can be said in response to this but I think I’ll limit myself to two points: 1. Saying that a zygote/embryo (i.e. a fertilized ovum) is small therefore it is not a person or that many zygotes/embryos and die naturally and therefore are not persons is not a good argument; 2. Judicial supremacy isn’t quite the closed question the author tries to make it.
Returning to the first point, one must wonder what the author thinks persons are. It’s a question he doesn’t answer except to say that size and mortality rate are things which can disqualify one from being a persons. I doubt that the author finds people who suffer from dwarfism to be less human than those who don’t but it’s hard to see why he would think this. I also doubt that he finds babies born with often fatal diseases such as cystic fibrosis are not persons but again, it’s a mystery why he would believe this. I suspect that behind his confusion regarding the simple logic that a human embryo is a human being is the very emotional and political reasoning he proclaims to reject with contempt. When someone rejects a straightforward argument (a human embryo is a human being), says that it seems to him (being “pro-choice” and “pro-women’s rights”) that it’s a complete nonsequitur, and then gives a couple of frankly bogus objections (I mean seriously, did he even think through his “unprotected sex” hypo?) it’s no stretch to assume that there’s some other agenda in the background.
In this debate, I wish with my whole heart that for just one moment we could stay focused on the real issue of what an zygote, embryo, or fetus is and not quibble about the endless red herrings. This post laughs off a philosophically and scientifically sound approach to defining personhood and offers nothing in return but recycled slogans and pejoratives that have sadly kept the real issue in this debate from ever being discussed.
As for my second point, Judicial Supremacy, the doctrine that whatever the supreme court says is the law is binding on all people in the U.S. is a different doctrine than the holding of Marbury v. Madison that it is emphatically the province and duty of of the judicial department to say what the law is. Court decisions are only binding on the parties involved in the suit, though the holdings of a court often govern subsequent cases or controversies. What’s more, the personhood amendment addresses a question which the Roe court, by their own admission, left open: when human life begins. Some years later in Casey, the plurality made clear, but only in dicta, that it’s an open question is to be decided by pregnant mothers. The proposed amendment would have pushed back on this. This isn’t some unconstitutional encroachment by a state on federal power (horror-of-horrors) but is entirely in keeping with our form of government. It also was recommended by President Lincoln in his first inaugural address:
“At the same time, the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal[, the Supreme Court].”
We are, for better or worse, a democracy (or more accurately a democratic republic) and laws like the personhood amendment are in keeping with the best of the American tradition of government of the people, by the people, and for the people no matter how small those people might be.
The only way to build up a society of social justice is by placing it on a firm foundation: respect for the inherent dignity of the human person and his or her rights to life, liberty, pursuit of happiness, etc. Contrary to what the author suggests, human dignity does not depend on a person’s size, age, or location in the womb (in addition to their race, gender, and sexual orientation). It is inherent. Pro-choicers probably agree with this, but then dispute when ‘personhood’ begins. The problem is, if you do not define personhood as beginning at conception, you are ultimately left with an arbitrary and unjust definition. Does it begin at birth? Why not at one year? Many early cultures thought it was acceptable for the parents to do away with their children as they pleased.
The author writes: “But again—this is a debate with reason and science on one side, and politically-motivated morality—mostly religious—on the other.” Yes, you’re right. Science and reason make clear that, genetically speaking, human life begins at conception. Politically-motivated and religious (yes, secular liberalism can be just as much of a religion as anything else) morality would try to engineer a society of justice by removing its most fundamental foundation, human dignity, in pursuit of other goals. I agree, it is not sufficient to make abortion illegal, as many mothers will pursue it by illegal means. What we must do, then, is work together to promote the truth of human dignity.
I simply wish to address the following passage, “Women—actual women—die, not 100 micron zygotes. 13% of these deaths are caused by so-called “unsafe abortions”—abortions performed where the procedure is outlawed, presumably with inadequate precautions and technology. A lack of access to abortion causes the death of actual human beings, and women who are actually in crisis—who would die without an abortive procedure being performed—remain protected in Mississippi because Amendment 26 did not pass.”
Here the author makes an assumption, common among supporters of abortion, that strong proscriptions on abortion procedures leads to a greater mortality rate in women, both those ‘forced’ to continue their pregnancy and those who seek an illegal abortion. The facts seem to dispute this. Legal abortion does not mean lower maternal mortality rates. Both Ireland and Poland, favorite targets of the abortion lobby for their strong restrictions on abortion, have better maternal mortality ratios than the United States. Ireland ranks first in the survey with 1 death for every 100,000 live births. In recent years Poland has tightened its abortion law and ranks number 27 on the list with 8 deaths per 100,000. In the United States where there are virtually no restrictions on abortion, the maternal mortality ratio is 17 out of 100,000 live births. Other regions of the world show similar trends. The African nation with the lowest maternal mortality rate is Mauritius, a country with some of the continent’s most protective laws for the unborn. Ethiopia, which recently decriminalized abortion, has maternal death rate is 48 times higher than in Mauritius. South Africa has the continent’s most liberal abortion laws and also a high maternal mortality ratio of 400 deaths per 100,000. Similar trends are seen in Asia and in South America, where Chile outranks all other South American countries as the safest place for women to bear children even though it retained constitutional protection for the unborn.
Moreover, even among nations with a higher mortality rate, abortion does not alleviate the suffering of pregnant women. In developing nations, the most common contributor to maternal mortality rates is infection. Women in these countries lack access to simple medical necessities like clean water, sterilized equipment, competent practitioners, and medication – the same supplies necessary for abortion procedures. If natural deliveries suffer complications in the absence of medical necessities, an invasive procedure like an abortion will cause even more. That 13% did not arise because abortion was outlawed, it arose because the nation as whole lacks basic health services and an abortion provider went through with the invasive procedure nonetheless. Legal abortion will not lower that number; access to penicillin will. If pro-women groups wish to protect women, then work to secure them clean supplies and medication; do not funnel them into a risky medical procedure while ignoring the true threats maternal health.
Finally, few members of the pro-life movement (and when I say a few I mean like none) argue or even insinuate that a woman cannot or should not be treated when a serious complication arises, even if the treatment results in the death of the fetus. In such cases, the termination of a pregnancy is the unfortunate side-effect of the treatment but it is not the goal unto itself. The Personhood Amendment did not assert that the unborn child’s life had greater worth than the mother, but that it had equal value. In the absence of serious risk, the interest tilts towards delivery; in the case of major complication, that balance shifts. All the Personhood Amendment proposed was that so called ‘health reasons’ like economic and social health could not override the child’s right to be born. It did not demand that a women in crisis continue without aid.
The author states that if the Constitutional amendment would pass, woman who faced death from pregnancy complications would not be able to get an abortion. But this is not true. The law has had to handle other situations where two lives hang in the balance and only one can survive. Perhaps law students will recall Regina v. Dudley and Stevens, 14 Q.B.D. 273 (1884). Three sailors were lost at sea and feared they would die before being rescued. One of the sailors looked like he would be the first to die. If that sailor did die, they could have eaten him and survived, and what rations they had could be shared among two and not three. They killed the third sailor. Eventually they were saved, but charged with murder. They did not deny the murder but claimed necessity. The Court rejected the argument, because when they killed the third, they could not be certain whether it was truly necessary. They may have all three been saved. In so doing, the Court stated:
[T]he whole chapter on homicide by necessity is taken up with an elaborate discussion of the limits within which necessity in Sir Michael Foster’s sense (given above) of self-defence is a justification of or excuse for homicide. There is a short section at the end very generally and very doubtfully expressed, in which the only instance discussed is the well-known one of two shipwrecked men on a plank able to sustain only one of them, and the conclusion is left by Sir Edward East entirely undetermined.
What is true of Sir Edward East is true also of Mr. Serjeant Hawkins. The whole of his chapter on justifiable homicide assumes that the only justifiable homicide of a private nature is the defence against force of a man’s person, house, or goods. In the 26th section we find again the case of the two shipwrecked men and the single plank, with the significant expression from a careful writer, “It is said to be justifiable.”
The law does not pass judgment on two men attempting to survive death by holding onto a plank that only holds one. Whatever passes between these two to attempt their own survival is beyond the judgment of men and left to God (or fate or karma or has no ramifications whatsoever or ensures survival of the fittest depending on your religious viewpoint). So, abortion would be allowable where necessary, just like it is today. But unlike today, where “necessity” might actually just be that the mother does not want the baby, it would have to be necessary for the life of the mother. The author of the opinion in Dudley and Stevens had already commented that larceny was not justified for extreme hunger, so much less so could extreme hunger justify murder. So, if the woman’s life was threatened by her pregnancy, necessity would justify the abortion of the baby. That might be easily determined by a predetermined process: such as having 3 doctors come to a conclusion about the risk to the mother. If the doctors agreed that the woman’s life was threatened, or even threatened sufficiently to raise the concern, then a mother could choose the course of action to follow. This would respect the choice of the mother after she has received the best information medical science could provide as to her actual risk. This avoids state paternalism in such personal matters. (After all, one could choose, instead of fighting for the plank, to give it up. See the movie Titanic.
The rest of the article, is as the other commenters have pointed out on various grounds, are just the emotions of the pro-abortion crowd posing as intellectualism as “intellectuals” are wont to do.