Defining “Personhood”

by by by Anna Matejcek

Fighting Roe v. Wade in Mississippi

The American Constitution outlines the rights and responsibilities of “persons” without ever defining who exactly constitutes a “person” under the country’s legal system. During the nineteenth and twentieth centuries, United States Supreme Court rulings slowly established that former slaves, racial minorities and women should be considered “persons” within the context of the law. There remains one large group, however, for whom the status of “person” remains controversially elusive—fetuses and fertilized eggs.

Debate over the exact point at which life begins has polarized American politics for decades. In the contentious 1973 U.S. Supreme Court case Roe v. Wade, Justice Harry Blackmun ruled that there is no constitutional basis or legal precedent to suggest that fertilized eggs or fetuses should be considered “persons”—an outcome that outraged many pro-life activists. Justice Blackmun did, however, postulate that if “personhood” were ever to be established for the fetus of fertilized egg, its “right to life would indeed be guaranteed” by the U.S. Constitution.

This issue of prenatal “personhood” has recently become the focus of a nationwide pro-life campaign aimed at amending states’ bills of rights and, ultimately, the U.S. Constitution, to explicitly define “personhood” as beginning at the moment of fertilization. The organization most heavily involved in working to pass these amendments is Personhood USA, a grassroots Christian organization with branches across the United States, from Mississippi to Massachusetts.

Personhood USA is currently focusing its activities on Mississippi, where pro-life activists have successfully collected far more than the ninety-thousand voter signatures necessary to place an amendment to the definition of “personhood” on the next popular ballot, to be held this coming November. The proposed amendment is Measure 26, or the Personhood Amendment, which defines “persons” as “every human being from the moment of fertilization, cloning or the functional thereof.”

If Measure 26 passes and is upheld by the Mississippi Supreme Court, it will essentially criminalize abortion in the state and could also be used to develop legal grounds for the criminalization of some kinds of birth control, embryo stem cell research, and in vetro fertilization—a process in which artificially fertilized eggs that fail to develop are often disposed of.

Assigning fertilized eggs the same rights as other “persons” could also create a slew of legal dilemmas regarding exactly how the rights and responsibilities of “personhood” should be applied to the unborn. As Alexa Kolbi-Molinas, an American Civil Liberties Union lawyer working to oppose Measure 26 asked in a recent Huffington Post interview, “What does it [Measure 26] mean for property or inheritance law? What happens when you're trying to make districts for voting, and you have to consider fertilized eggs as legal persons?” Although Personhood USA seems most concerned with securing fertilized eggs’ rights to life and liberty, the status of “personhood” entails much more than just the right to exist.

Legally determining that “personhood” begins at fertilization is by no means the endgame for Personhood USA. The organization sees November’s popular ballot as the first step in a long process of overturning what the organization’s website deems the “horribly unjust, immoral, and unconstitutional ruling” of Roe v. Wade, in which the U.S. Supreme Court ruled that women have the right to abort unwanted pregnancies up until the point of “viability”, at which a fetus is "potentially able to live outside the mother's womb, albeit with artificial aid.”

In its petition for Measure 26, Personhood USA defined its mission as “returning personhood to the weak and the powerless in order to restore their dignity and right to life as human beings.” Keith Mason, co-founder of Personhood USA, believes that the organization’s campaign is no different from other monumental human rights struggles in American history—from ending segregation, to promoting women’s suffrage, and even gay rights. While Mason stated in a 2009 Los Angeles Times article that he does not “agree with the homosexual agenda,” he admits that he admires “the tenacity of what they have done to fight for what is right.”

While Personhood USA’s campaign is popular among the more ardent American pro-life electorate, the organization’s unwillingness to compromise has garnered significant criticism, even from social conservatives. In a recent National Review article, Michael J. New, a political scientist affiliated with the CATO Institute and the Goldwater Institute, asserted that simply “declaring that life begins at conception would not, by itself, stop any abortions.” In order to fully criminalize abortion, the state legislature would have to pass a series of laws outlining punishments for those involved in carrying out abortions”—a process that could take years. In addition, passing Measure 26 would require Mississippians to stand behind the criminalization of abortion even in controversial circumstances such as rape, incest, and births that pose a mortal risk to the mother—a move that would alienate more moderate pro-life voters who support women’s right to abortion in certain extreme cases.

Although appealing to liberal Republicans’ and Independents’ more permissive views on abortion might assist in taking back the White House, it does not appear to be of primary concern to certain factions of the GOP. Last week, Virginia Republicans passed a set of construction and design regulations for medical clinics that, according to the Washington Post, will likely result in the closure of most of the state’s abortion clinics. In Ohio a bill that would ban abortions after a fetal heartbeat is detected has already passed the state House and is currently awaiting assignment to a committee in the Senate. While Personhood USA was not actively involved in these actions, the organization supports basically any campaign that might help overturn Roe v. Wade.

Republican presidential candidates Rick Perry, Michele Bachmann and Newt Gingrich have all expressed their support for the Ohio bill, and have called for congressional legislation that would ban abortion nationwide. Mitt Romney and Ron Paul take a different stance, not because they are pro-choice supporters, but because they believe decisions regarding the legality of abortion should be left up to state governments.

While some pro-choice optimists point to the failure of similar efforts to redefine “personhood” in Colorado in 2008 and 2010, and conclude that Measure 26 will fail, conservative political scientist Michael New, writing in The National Review, believes that “Personhood advocates probably have a better chance in Mississippi than in any other state.” Mississippi has a large population of conservative Republican voters, an ardent pro-life community, and just one single, remaining abortion clinic. As Keith Mason of Personhood USA stated in a recent Fox News article: “Around eighty percent of the [Mississippi] electorate is pro-life. The only way we could see defeat in Mississippi is if folks just sit at home and do nothing.”

ANNA MATEJCEK B’12 is so much more than a fertilized egg.