The latest tactic in the anti-abortion arsenal is advocating passage of so-called personhood measures, and it is likely that Mississippi will do so when it elects a new governor next Tuesday.
The Mississippi measure defines a person as “every human being from the moment of fertilization, cloning or the functional equivalent thereof.” While this sounds pretty straightforward, legal observers say it is anything but and that states might regret promulgating such measures because of all the problems they will cause:
* Chief among them is that it’s impossible to pinpoint the precise moment of fertilization.
* It is unclear whether the measures will have the force of law or whether laws would have to be passed in order to enforce them.
* What would the penalties be for not hewing to the measure and any attendant laws?
* What effect would such measures have on Roe v. Wade, which secured a woman’s right to have an abortion in the first trimester of pregnancy?
As long as Roe remains the law of the land, the last question is easy to answer because the Constitution’s Supremacy Clause states that when state and federal laws conflict, federal law prevails.
But that, in turn, creates other problems.
This is because in-vitro fertilization (IVF) often involves discarding unused, fertilized embyros, and this is not constitutionally protected. Nor are intrauterine devices (IUDs), which can prevent the implantation of fertilized embryos. Would IUDs then be banned if personhood measures became law?
And if personhood measures do not have the force of law, what’s the point? Grandstanding?
James Bopp, general counsel for the National Right to Life Committee, warns that pro-lifers should be careful what they wish for because forcing the personhood issue all the way to the Supreme Court, which surely is a motive for some advocates, could actually result in stronger protections for abortion.
In one scenario, Bopp envisions pro-lifers having to defend a law banning popular IVF procedures and commonly used forms of birth control. He suggests that they would fail.