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The 'Personhood' Distraction

The proponents of the Mississippi "personhood" initiative ignore what their law would mean to pregnant women.

Mississippi voters will cast their ballots on November 8 for or against Initiative 26, which would make every “fertilized egg” a “person” as a matter of law. Many have rightly condemned this so-called personhood initiative as an attack not only on abortion rights, but also on the ability to practice widely used methods of birth control, to attempt in vitro fertilization, and to grieve a miscarriage in private, without a criminal investigation by the state. These are all well founded criticisms of the Mississippi measure and its consequences, whether intended or unintended.

These criticisms, however, fail to identify another flaw in the reasoning of the initiative’s proponents. The proponents assume that attaching the label of “person” to fertilized eggs, embryos, and fetuses necessarily establishes a legal basis for criminalizing abortion, or even for requiring its criminalization.

Yet, our laws and our legal tradition have never punished all behavior that results in the death of a person. First, our laws have never required one individual to give up part of his or her body to save another person, even the individual’s own child. While we always find admirable, for example, life-saving donations of bone marrow or kidneys to others, we have no laws compelling such altruism even if a person, including one’s child, would die without the donation. Indeed, it’s not a crime to refuse to perform far less invasive or demanding actions although another person’s death will result. Second, our laws have always allowed causing the death of another in the exercise of self-defense, especially in the face of threats to one’s body.

Both before and after the Supreme Court decided Roe v. Wade, several observers pointed out the relevance to abortion of these two legal traditions – the absence of a “Good Samaritan” requirement and the principle of self-defense. Unlike the reasoning in Roe, however, these analyses assume that the pregnant woman’s refusal to make bodily sacrifices will result in the death of a person. In other words, the contested issue of personhood becomes irrelevant under this approach.

Apparently, the proponents of the Mississippi initiative believe that the criminalization of abortion follows seamlessly from an expanded understanding of personhood. They ignore, however, what it would mean to single out pregnant women for physical sacrifices and burdensome duties not required of any other class of citizens. Such exceptional treatment would raise serious equal protection questions. Perhaps in an equalizing effort, forced kidney and bone marrow donations would become the new regime and the privilege of self-defense would be substantially narrowed for everyone. In addition, equal treatment would mean that any pregnant woman who agreed to an abortion would herself become a criminal, as an accomplice or conspirator, just like anyone else who agreed to a premeditated homicide.

Personhood has never been the critical issue. The critical issue has always been whether, as a society, we trust and respect women’s ability to make the difficult, even life-and-death, choices that we allow others to make when confronted with either another’s need for life-saving help or an unwanted attack on one’s body. Pregnant women, no less than other citizens, must be entitled to make such decisions.

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