A constitutional amendment facing voters in Mississippi on Nov. 8, and similar initiatives brewing in half a dozen other states including Florida and Ohio, would declare a fertilized human egg to be a legal person, effectively branding abortion and some forms of birth control as murder.
With this far-reaching anti-abortion strategy, the proponents of what they call personhood amendments hope to reshape the national debate.
"I view it as transformative," said Brad Prewitt, a lawyer and executive director of the Yes on 26 campaign, which is named for the Mississippi proposition. "Personhood is bigger than just shutting abortion clinics; it’s an opportunity for people to say that we’re made in the image of God."
Many doctors and women’s health advocates say the proposals would cause a dangerous intrusion of criminal law into medical care, jeopardizing women’s rights and even their lives.
The amendment in Mississippi would ban virtually all abortions, including those resulting from rape or incest. It would bar birth control methods, including IUDs and "morning-after pills" that prevent fertilized eggs from implanting in the uterus. It would also outlaw the destruction of embryos created in laboratories.
The amendment has been endorsed by candidates for governor from both major parties, and it appears likely to pass, said W. Martin Wiseman, director of the John C. Stennis Institute of Government at Mississippi State University. Legal challenges would surely follow, but even if the amendment is ultimately declared unconstitutional, it could disrupt vital care, critics say, and force years of costly court battles.
"This is the most extreme in a field of extreme anti-abortion measures that have been before the states this year," said Nancy Northrup, president of the Center for Reproductive Rights, a legal advocacy group.
Opponents, who were handing out brochures Saturday to tailgate partiers before the University of Southern Mississippi football game in Hattiesburg, said they hoped to dispel the impression that the amendment simply bars abortions — a popular idea in Mississippi — by warning that it would also limit contraceptives, make doctors afraid to save women with life-threatening pregnancies and possibly hamper in vitro fertility treatments.
The drive for personhood amendments has split the anti-abortion forces nationally. Some groups call it an inspired moral leap, while traditional leaders of the fight, including the National Right to Life and the Roman Catholic bishops, have refused to promote it, charging that the tactic is reckless and could backfire, leading to a Supreme Court defeat that would undermine progress in carving away at Roe v. Wade.
The approach, granting legal rights to embryos, is fundamentally different from the abortion restrictions that have been adopted in dozens of states. These try to narrow or hamper access to abortions by, for example, sharply restricting the procedures at as early as 20 weeks, requiring women to view ultrasounds of the fetus, curbing insurance coverage and imposing expensive regulations on clinics.
The Mississippi amendment aims to sidestep existing legal battles, simply stating that "the term ‘person’ or ‘persons’ shall include every human being from the moment of fertilization, cloning or the functional equivalent thereof."
A similar measure has been defeated twice, by large margins, in Colorado. But the national campaign, promoted by Personhood USA, a Colorado-based group, found more receptive ground in Mississippi, where anti-abortion sentiment crosses party and racial lines, and where the state already has so many restrictions on abortion that only one clinic performs the procedure.
In 2009, an ardent abortion foe named Les Riley formed a state personhood group and started collecting the signatures needed to reach the ballot. Evangelicals and other longtime abortion opponents have pressed the case, and Proposition 26 has the support of a range of political leaders. Its passage could energize similar drives brewing in Florida, Michigan, Montana, Ohio, Wisconsin and other states.
In Mississippi, the emotional battle is being fought with radio and television ads, phone banks and old-fashioned canvassing.
Among the picnicking fans being lobbied outside the stadium in Hattiesburg on Saturday, Lauree Mooney, 40, and her husband, Jerry Mooney, 45, USM alumni, disagreed with each other. She said that she is against abortion but that the amendment is "too extreme." Jerry Mooney said he would vote yes because "I’ve always been against abortion."
Shelley Shoemake, 41, a chiropractor, said the proposal is "yanking me in one direction and the other." She knows women who had abortions as teenagers, and feels compassion for them. "I’ve got a lot of praying to do" before the vote, she said.
Mississippi will also elect a new governor on Nov. 8. The Republican candidate, Lt. Gov. Phil Bryant, is co-chairman of Yes on 26 and his campaign distributes bumper stickers for the initiative. The Democratic candidate, Johnny DuPree, the mayor of Hattiesburg and the state’s first black major-party candidate for governor in modern times, says he will vote for it though he is worried about its impact on medical care and contraception.
No one can yet be sure of how the amendment would affect criminal proceedings, said Jonathan Will, director of the Bioethics and Health Law Center at the Mississippi College School of Law. Could a woman taking a morning-after pill, for instance, be charged with murder?
But many leaders of the anti-abortion movement fear that the strategy will be counterproductive. Federal courts would almost surely declare the amendment unconstitutional, said James Bopp Jr., a prominent conservative lawyer from Terre Haute, Ind., and general counsel of National Right to Life, since it contradicts a woman’s current right to an abortion in the early weeks of pregnancy.
"From the standpoint of protecting unborn lives it’s utterly futile," he said, "and it has the grave risk that if it did get to the Supreme Court, the court would write an even more extreme abortion policy."
Bishop Joseph Latino of Jackson, Miss., said in a statement last week that the Roman Catholic Church does not support Proposition 26 because "the push for a state amendment could ultimately harm our efforts to overturn Roe vs. Wade."
Conservative Christian groups including the American Family Association and the Family Research Council are firmly behind the proposal.
Dr. Randall S. Hines, a fertility specialist in Jackson working against Proposition 26 with the group Mississippians for Healthy Families, said that the amendment reflects "biological ignorance." Most fertilized eggs, he said, do not implant in the uterus or develop further.
"Once you recognize that the majority of fertilized eggs don’t become people, then you recognize how absurd this amendment is," Hines said. He fears severe unintended consequences for doctors and women dealing with ectopic or other dangerous pregnancies and for in vitro fertility treatments. "We’ll be asking the Legislature, the governor, judges to decide what is best for the patient," he said.
Dr. Eric Webb, an obstetrician in Tupelo, Miss., who has spoken out on behalf of Proposition 26, said that the concerns about wider impacts were overblown and that the critics were "avoiding the central moral question."
"With the union of the egg and sperm, that is life, and genetically human," Webb said.
Keith Mason, president of Personhood USA, said he did not agree that the Supreme Court would necessarily reject a personhood amendment. The ultimate goal, he said, is a federal amendment, with a victory in Mississippi as the first step.