Is an embryo a 'person'? Mississippi set to decide in abortion referendum

Initiative 26, a Mississippi ballot measure, asserts that 'personhood' begins at conception. The proposed state constitutional amendment, which challenges the 1973 Roe v. Wade abortion ruling, goes to voters Nov. 8.

Rogelio V. Solis/AP/File
Supporters of the legal concept of ‘personhood’ gathered at the Capitol in Jackson, Miss., in June. Voters take up the issue Nov. 8.
Rich Clabaugh/Staff

After years of antiabortion groups whittling away at the edges of Roe v. Wade, Mississippi is poised to cut straight to the chase by asserting that "personhood" begins at conception, meaning that any type of abortion or postconception birth control could be considered murder.

Part of a salvo aimed at overturning Roe v. Wade, Initiative 26 is a ballot measure that comes up for a vote Nov. 8 and is backed by both the Republican and the Democratic gubernatorial candidates. It has widespread support in Mississippi, where opposition to abortion cuts across racial, class, and economic lines. Regulations are so tough that there's only one abortion clinic left.

Initiative 26, which would amend the state constitution, hinges on the distinction between "human being," a scientific term, and "person," a legal entity. Proponents see the amendment's language – that "the term 'person' or 'persons' shall include every human being from the moment of fertilization, cloning or the functional equivalent thereof" – as a framework for antiabortion legislation that could spread to other states and, ultimately, to the US Supreme Court.

Initiative 26 would effectively ban the "morning-after pill" and abortion, even in cases of rape or incest, and could have far-ranging consequences for women's medical care and fertility treatments, turning women's bodies, in effect, into crime scenes. If it passes, a court challenge is likely.

Personhood USA, the group behind Initiative 26, is directly attacking a key part of the 1973 Roe v. Wade deliberations in which justices noted the abortion-rights case would "collapse" if embryos were defined, by law, as people.

Similar "personhood" ballot measures failed twice by wide margins in Colorado.

Some antiabortion groups fear that a provocative philosophical debate about the first moments of life puts the broad-based national effort to weaken Roe v. Wade into direct danger, as it could lead the Supreme Court to reaffirm, not throw out, pro-choice protections.

"This amendment cuts to the heart of the abortion debate in terms of the moral and theoretical nature of the problem," says Christopher Tollefsen, a South Carolina ethicist and visiting professor at the James Madison Program at Princeton University. "It takes the pro-life movement beyond the recent question of whether an embryo is a human being to whether the embryo is a person who needs to be treated with fundamental respect and full protection of the law."

He adds: "Everybody in the pro-life movement is sympathetic with the general aim and claim of personhood, but on the political and legal level there's a sense that the amendment doesn't adequately spell out a legal framework ... for addressing the end of abortion."

In recent years, abortion foes have won state battles requiring, for example, abortion providers to offer anesthesia to embryos to thwart "fetal pain" and pregnant women who want abortions to look at ultrasound pictures of their fetuses. Georgia in 2009 took a step toward "humanizing" the embryo when lawmakers allowed adoption of frozen embryos in fertility labs.

In ads, canvassing events, and symposiums across Mississippi, pro-Initiative 26 forces have played down the amendment's potential impact, saying it applies only to abortion and some forms of contraception. But critics fear more dramatic consequences, expressly that extending personhood to zygotes (fertilized eggs) could lead to criminal implications for those who choose to have abortions, those who make poor lifestyle decisions while pregnant, and even for doctors and fertility specialists who decide what to do with fertilized eggs left over from in vitro fertilization procedures.

Ultimately, says City University of New York law professor Caitlin Borgmann, the initiative's "extreme view of personhood" fails to "give us all the dignity and autonomy to wrestle with these decisions ourselves.... This is a morally complex question, but the problem with Amendment 26 is it makes it seem like a very simple question."

The fact that consequences of the law are unclear shouldn't deter Mississippians from challenging the Roe v. Wade status quo, some in the antiabortion movement contend. "The [Mississippi referendum] allows people to see that the abortion issue is related to morals … but it's also related to nature and to natural law, where nature plays a strong role in this," says the Rev. Paul Stallsworth, editor of the antiabortion newsletter "Lifewatch," in Morehead City, N.C. "And I think science is very clear that human life begins at conception, not after conception."

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