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’Personhood’ Laws Do Nothing to Resolve Abortion Debate: View

November 16, 2011

Nov. 8 (Bloomberg) -- Mississippi residents will vote today on an amendment to the state’s constitution that would define as a person “every human being from the moment of fertilization, cloning or the functional equivalent thereof.”

According to polls, Amendment 26 enjoys broad support in the state and appears poised to pass. Although a half-dozen states are considering their own “personhood” amendments, we hope that even the most ardent pro-life activists will pause before following Mississippi down this legal dead end.

Amendment 26 is unlikely to produce change in abortion law, even in Mississippi, which has only one clinic that performs the procedure. Until the U.S. Supreme Court says otherwise, Roe v. Wade is the law of the land, including Mississippi. Roe may be famously dubious as law, having located a right to abortion in a privacy right. But the decision has proved durable precisely because it reflects the muddled middle of the abortion debate -- a broad swath of Americans who are caught between the opposing and irreconcilable viewpoints of the extremes. According to Gallup, half of Americans believe abortion should be legal under certain circumstances while far fewer believe it should be either completely legal or completely illegal.

The assault on Roe advanced by Amendment 26 has not even produced clarity among its supporters, who fail to agree on what exactly “personhood” starting at conception would mean. Does the amendment intend to ban birth control such as the IUD, in addition to the morning-after pill? And if that isn’t the intent, would it ban it anyway? What about in vitro fertilization, a process that both creates and discards embryos? What new rights would be afforded to a fetus, and how would those rights affect or compete with the rights of the woman who carries it? Would a woman who has an abortion be guilty of murder and subject to capital punishment? How would the legislature write the law that would embody and define the principles of Amendment 26?

Emotional Catharsis

In their quest to ban abortion in Mississippi, the amendment’s drafters appear to have rushed past such concerns. Or perhaps they ignored the complexities because they were interested ultimately in an act of emotional catharsis, not law.

Symbolic “personhood” amendments heighten political rancor and division while pointlessly imposing legal expenses and other burdens on the states that pursue them -- including Mississippi, one of the nation’s poorest. Ultimately, they stand to be overturned by federal courts.

If pro-life activists want to outlaw abortion, the path to their goal is clear: They need to persuade fellow citizens of the justness of their cause. (The Supreme Court is ideally above such short-term political calculations, but it is highly responsive to them over the long term.) Having failed to muster a national political majority in the four decades since Roe was decided, Amendment 26 supporters are now indulging a vision of absolutism that simply wishes away the ambiguities -- moral, legal and political -- surrounding abortion.

It’s possible that a century from now our descendents will look back at Roe v. Wade, and the sometimes queasy Americans who support it, with a moral contempt similar to what we now reserve for 19th century slave holders. Or so many in the pro-life movement maintain. Likewise, the trauma that haunted some unwanted pregnancies in the era before abortion was legalized is not a history that should encourage nostalgia among abortion opponents.

Given the passions and extremes that the issue incites, our democracy can perhaps do no better, for now, than to muddle through. As Amendment 26 shows, it can do much worse.

--Editors: Francis Wilkinson, Michael Kinsley


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