More on Personhood Amendments

The Ohio Personhood Amendment will insert Section 16(b):

"Person" and "men" defined:
The words "person" in Article 1, Section 16, and "men" in Article 1, Section 1, apply to every human being at every stage of the biological development of that human being or human organism, including fertilization.

"Our American forefathers" allowed abortion (and slavery and a lot of other stuff, but still, not a great reference). The Bible is also referenced.  Debatable as that might be, it's not something to use to defend secular law, nor does it quite get where they want to go -- the Bible allows the taking of "life" for any number of reasons, particularly in the Old Testament.  Then, there is a scientific definition, but again, particularly since science cannot define something like "person" (a legal or moral term), even putting other questions [touched upon by my previous discussion of this topic], this really only takes you so far.

My last discussion arose in particular from the Mississippi personhood amendment, and Rachel Maddow has focused on that (including last night), but references are made to a half-dozen or so of these things. This discussion led me to some helpful articles, including this one on the science of birth control. One article is by Michelle Goldberg, who wrote two interesting books -- on Christian nationalism and reproduction issues. Both are recommended. It includes discussion of the affect of such laws on IVF issues, noting the results of the restrictive policies in Italy and Germany. And, per my comment that effects on abortion and birth control are likely to be struck down but that it still would have some legal effect:

“People think, Oh well, they’re going to try to ban abortion but they’re not going to get away with it,” she says. “In Mississippi, there are a host of other issues—how does it change property law, districting, how do you count your citizens. You could imagine a new court case filed every day.”

Such issues and the reach of such a provision was noted by the dissents of Blackmun and Stevens in a case back in the 1980s involving a Missouri law of a similar caliber. Stevens' Establishment Clause discussion is also telling.* The Salon article notes the risky move taken here, one that (akin to some on the right loathe to have Christine O'Donnell run for the US Senate) some on the pro-life ("pro-life") side rather not take:

Personhood could represent the most audaciously successful reframing of the national abortion debate yet – in which pro-choicers have to fight over whether forms of birth control are abortion, as opposed to ensuring a woman’s right and access to reproductive choice. But even in Mississippi, allowing the fringe to drive the antiabortion movement could represent the point where it overplays its hand.

Goldberg notes that the effort can be seen to arise from "beast" itself:

It’s built around a few lines in Roe v. Wade that grapple with the question of whether a fetus is a person under the 14th Amendment. “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,” wrote Justice Harry Blackmun, before concluding that a fetus is not in fact a person.

Not really true and not needed to overturn Roe, underlined by the fact that those on the Supreme Court that wish to do so do not claim states cannot choose to allow abortions early in the pregnancy. Dorothy Beasley, the assistant D.A. who defended the restrictive law in Doe v. Bolton might have spoke of fetal Ninth Amendment rights, but even there abortion was allowed in a few cases (including, unlike in the Mississippi case here, for rape). I have looked through many lower court opinions and rarely was it suggested that that "persons" were being killed here. One outlier suggested otherwise, but though it upheld the anti-abortion law, even it noted that a woman still had some right to protect herself. I think the dissenting opinion is more correct:

I will not debate the biological or philosophical conclusion of the majority that, from the moment of conception a human life has commenced, although retired United States Supreme Court Justice Tom C. Clark does appear to take issue therewith, Clark, Religion, Morality and Abortion: A Constitutional Appraisal, 2 Loyola Univ. (L.A.) L.Rev. 1, 9-10 (1969). I am, however, more inclined to the view expressed in Doe v. Bolton, 319 F.Supp. 1048, 1055 (D.C.N.D.Ga., filed July 31, 1970) that "once conception takes place and an embryo forms, for better or for worse the woman carries a life form with the potential of independent human existence."

I understand and basically support the desire to give some meaning to human life, so that embryos are not treated the same way as a chair. The words used here are controversial, so how it is done is tricky, down to the nuances of the word "life" itself. I referenced in my first discussion Stevens' statement in an abortion ruling that it is logical for the state to regulate and protect the growing life in different ways from fertilization to birth. This is quite different from treating fertilized eggs as "persons," particularly if this means trumping the rights of girls and women from having an abortion for any reason other than maybe severe health risks (strictly applied). The dangers of treating fetuses as persons was noted by Rachel Roth in Making Women Pay: The Hidden Costs of Fetal Rights. Imagine if we push things back to conception. This would be true even if we are speaking of personal belief and practice. Much more so by secular law.

The Supreme Court has treated "persons" as humans who are born. Roe itself underlines this does not mean a state must allow pregnant women to abort until birth. A case a few years previously noted this in passing:

We start from the premise that illegitimate children are not "nonpersons." They are humans, live, and have their being.[3] They are clearly "persons" within the meaning of the Equal Protection Clause of the Fourteenth Amendment.

The matter of what "being" means is obviously greatly debated, including various proposals to have an earlier abortion cut-off. Trying to give "being" to a fertilized egg, however, is a bit much. Consider as well an important 19th Century case, if involving a lower court, that allowed a Native American to obtain habeas relief, holding for that purpose, he is a "person." In part:

Webster describes a person as "a living soul; a self-conscious being; a moral agent; especially a living human being; a man, woman, or child; an individual of the human race."

The fact that this would give an unborn Native American standing is I would think not a reasonable assumption as such. And, to say as much is not (sorry Ronald Reagan) to harken back to Dred Scott v. Sandford which removed blacks from the community of "persons" worthy of respect under the U.S. Constitution. The ability to give some legal protection to unborn human life is possible without going that route. I might also suggest for discussion that such life might have aspects of personhood as I think at least certain non-human animals have. But, as Roe notes, not in a "full" sense.

A final word on the issue of birth control, which Rachel Maddow and others flag. As one article noted:

The package insert for Plan B says that while the pill works principally by stopping ovulation (release of an egg) or fertilization, it may also prevent implantation of a fertilized egg by altering the lining of the uterus.

The use of "may" is telling -- the discussions underline that this hasn't been proven. Now, even if you are wary, on balance, only a distant chance might not be enough for you to disallow such contraception. This is so particularly if you recall that many fertilized eggs naturally die off, so (along with use of morning after pills in case of rape or other special cases) preventing conception in the first place will actually stop such "needless loss of life." But, as with those against the death penalty, the risk might be too much, especially since the people involved are very wary of the thing in the first place:

Scientists say hormonal birth-control pills and the morning-after pill work primarily by preventing fertilization in the first place, but the outside possibility, never documented, that an egg could be fertilized anyway and blocked is enough for some pro-lifers.

And, as I noted last time, the website for the Mississippi measure speaks in such a way that makes clear it admits "some" types of birth control might not be allowed. It's a tricky issue, but I'm not sure how much it can be avoided. Either side will also spin things some, prohibition of birth control (really some types) making it sound particularly bad. Bottom line, if the pro-choice side has to fight even on this battlefield, regarding something many who find abortion very distasteful will admit is at best ill-advised, it's very troubling.

The questions here will continue to be strongly debated and people on my side support wide discretion. But, there are reasonable matters of debate and then there are extreme measures. This falls quite far along toward the latter.

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* The majority did not address the issue on the merits, but the plurality summarized the provision thusly:

The first provision, or preamble, contains "findings" by the state legislature that "[t]he life of each human being begins at conception," and that "unborn children have protectable interests in life, health, and wellbeing.

The connection between this and "personhood" is clear.