13 Nov, 11 | by Iain Brassington
Phew, I thought, when I heard that Measure 26, the proposal to redefine “personhood” to cover the unborn, had been thrown out by the electorate of Mississippi. To catch up: the prosaically-named piece of legislation would have
amend[ed] the Mississippi Constitution to define the word “person” or “persons”, as those terms are used in Article III of the state constitution, to include every human being from the moment of fertilization, cloning, or the functional equivalent thereof.
(In the end, 58% of the electorate voted against it; it is, for now, dead.)
In the light of this, it’s a bit of a disappointment to learn that there’s still a live-and-kicking (if you’ll excuse the expression) attempt to achieve the same thing, only this time on a national level: H.R. 212 IH aims to protect all human life from the moment of conception.
A curious feature of such attempts is the weight they put on defining the moment at which life starts; thus HR 212 specifically states that
the life of each human being begins with fertilization, cloning, or its functional equivalent, irrespective of sex, health, function or disability, defect, stage of biological development, or condition of dependency, at which time every human being shall have all the legal and constitutional attributes and privileges of personhood
– a point that is singularly unimportant. What counts is not when a (discrete) human life begins, but when that life becomes morally important enough to warrant legal protection. But, still: let’s imagine a world in which one of these proposals, or one significantly like them, makes it on to the statute books. Leaving aside, too, the difference between the meanings of the word “personhood” in the mouth of the lawyer, the philosopher, and the person on the street, would they make all that much of a difference?In one way, they might. As critics have pointed out several times over the years, if you give legal personhood to a foetus, you run the risk of making them capable of inheriting property, and perhaps having to be counted when it comes to working out how many more people can get on the bus without it becoming legally overloaded. So I’m going to be generous, and assume that the hypothetical law would be scrupulously well drafted to avoid such absurdities. I’m also going to ignore another absurdity: that which arises from the fact that the conceptus may well go on to form a person in either the philosophical or legal sense – but it will also go on to form the placenta. Until the primitive streak appears, at around 14 days, it’s impossible to tell which cells will form the baby, and which will be afterbirth. So, on one possible reading, granting full legal protections to the conceptus means that we’re potentially treating foetus and the placenta as morally and legally equivalent. As such, there would seem to have been huge potential moral and legal problems with the proposal. But, as I said, let’s put all that to one side.
What then? Well, it seems to me that there’s a number of reasons to think that, taken on its own terms, such a law wouldn’t necessarily be all that big a deal. I’m specifically thinking about the Mississippi proposal in what follows; but I think that, mutatis mutandis, the same might be said of other relevantly similar proposals.
Measure 26 referred to the use of the word “person” in the Mississippi State constitution; and, as far as I can see, the most important bit here is from Article 3, sec. 14:
No person shall be deprived of life, liberty, or property except by due process of law.
I’ve underlined the last bit, because it obviously matters what the due process of law is. There is nothing in the Constitution as it stands to say that all (human) life must be protected; indeed, the State of Mississippi has retained for itself the legal right to kill under certain circumstances, and so cannot coherently claim that killing persons is always morally wrong.
In working out the due process of law, much revolves around the decision handed down in Roe v Wade; here, the majority opinion asserted that
the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.
This means that, in effect, the US constitution forbids States to make abortion illegal. What States can do is to make it hard to get an abortion (and several states have introduced measures patently intended to do this over the last few years, as I’ve noted on this blog and elsewhere). However, absent any legislation to make abortion difficult, merely altering the definition of personhood won’t make any difference. Due process would allow a woman to seek abortion.
Now, it’s fairly obvious that the intention behind Measure 26 was pro-life, and that the same would be true of other proposals. And there may have been, and continue to be, attempts to make abortion harder to get; it seems plain to me that this amendment was intended to open the door to them, and its defeat will not make those attemps vanish. Any such subsequent laws are highly likely to be worrisome, too. But their scope would, all the same, be bound by Roe v Wade. In other words, the Measure as it stood – notwithstanding that it was dogmatic, senseless, and ethically and biologically incompetent – was pretty formalistic. And the same applies to the HR 212 proposal. Though it is nicknamed a “Sanctity of Life” law, it doesn’t actually say that it’s forbidden to kill humans – even those that everyone agrees are persons. So there’d still be scope – indeed, a necessity – to interpret it in the light of extant laws.
So there’re good reasons to think that the proposal would not have done (and would not do) quite what a number of its supporters might have thought it could. Nevertheless, it’s a good thing that the Mississippi version has gone, and it is undesirable that there are other versions knocking about. For one thing, as has been noted by a number of commentators, proposals like this are capable of being used to engineer showdowns with Roe v Wade. For another, this particular proposal was likely simply to be bad law – not least because of the afterbirth point I mentioned a moment ago – and, wherever you stand on the rights of the foetus, bad law is bad. Finally, the Measure would have had massive symbolic importance, even if my suggestions about its legal significance are correct.