Why Vote Yes on 26! An Expose by Jackson Attorney, Russ Latino

Answers to "Unintended Consequences" of Personhood Amendment

by Russell Latino on Friday, November 4, 2011 at 3:20pm

There is a lot of information and a lot of confusion swirling around about the purpose and effect of Initiative 26, commonly referred to as the “personhood amendment.”  It is my belief that much of that information is being peddled by pro-abortion special interests groups intentionally at the eleventh hour to prevent effective rebuttal.  Of course, the source doesn't impact whether the substance of any given allegation has merit, but it could give you some idea of the motivation behind the message.

It's my intention, here, to try and answer all of the questions I have been presented with or have seen throughout the course of the debate on this amendment.  Several other individuals and organizations have attempted to answer some of these questions.  I'm not trying to duplicate their efforts or reinvent the wheel, just combine all of the various questions and share my perspective.  I know time is limited in the day, but this is a vitally important issue and I hope you'll take the time to read and consider the below answers to the following 12 questions:

(1) What is the purpose of Initiative 26?

(2) Will Initiative 26 make all abortions illegal in Mississippi?

(3) Will Initiative 26 prevent termination of an ectopic or tubal pregnancy?

(4) Will Initiative 26 subject physicians who terminate an ectopic or tubal pregnancy to criminal prosecution?

(5) If Initiative 26 doesn't put physicians at risk of criminal prosecution, why are some physicians and medical organizations opposed?

(6) Will Initiative 26 subject women who have miscarriages to criminal prosecution?

(7) Will Initiative 26 end access to contraceptives?

(8) Will Initiative 26 end access to in vitro fertilization?

(9) Why are some religious leaders opposed to Initiative 26?

(10) What will Initiative 26 cost the state of Mississippi?

(11) What does Initiative 26 say about cloning?

(12) Who should make these decisions?

 


 

(1)  What is the purpose of Initiative 26?

Understanding the personhood amendment starts with having some understanding of Roe v. Wade. In 1973, the U.S. Supreme Court decided the landmark case effectively legalizing abortion on a national level.  The Roe Court concluded that the 14th Amendment—a post-Civil War amendment designed to afford African Americans equal protection and due process under the law—provided women with a right to privacy.  The Court’s announcement of this new “fundamental right” for women hinged largely on the premise that the unborn were not “constitutional persons” under the U.S. Constitution, and thus, the protection of the unborn did not serve as a sufficient basis to permit the state to invade the newfound right to privacy.

In their dissents, Justice Byron White and Justice William Rehnquist each argued that the Court had made a political decision not rooted in the text or original intent of the Constitution.  Interestingly, Justice White, indicated some agreement with the “values” of the majority, but in fidelity to the Constitution could not agree with the majority’s activism.  Justice Rehnquist noted that at the time the 14th Amendment was adopted in 1868 over 30 states or territories had enacted laws restricting abortion, and yet, the drafters of the 14th Amendment made no effort to address the practice or carve out a “right to privacy” that would guarantee access to abortions.

As recorded by Justice Rehnquist, before Roe, abortion restrictions and exceptions were decided on a state by state basis as a matter of public policy.  Since Roe, over 52 million abortions have been performed.  Justice Scalia has referred to Roe as one of the three worst judicial decisions in the Court’s history.

The purpose of the personhood amendment is simple.  It merely offers a definition of a person that is inclusive of unborn children.  It does not, itself, outlaw abortions.  It is crafted to give the legislature an opportunity to place restriction on abortion, and in so doing, set up a unique challenge to Roe: the question being whether a state can decide that an unborn child is a person and in so deciding provide a compelling interest in the invasion of the “right to privacy” discovered in the 14th Amendment by the Roe Court.  The challenge would also permit a reconsideration of the arguments posed by Justices White and Rehnquist before a Supreme Court that includes what is presumed to be four friendly votes.  As an aside, this also highlights the need for a conservative victor in the presidential sweepstakes as Justice Ginsburg’s seat may come open in the next term.

(2)  Will Initiative 26 make all abortions illegal in Mississippi?

Both critics and some pro-life advocates have assumed that passage of Initiative 26 would make all abortions illegal in Mississippi.   Most of those assumptions have been made without consideration of the interaction of the language of the amendment and existing law.   Some have based that assumption on a belief that homicide statutes would immediately begin to apply to protect the unborn.  This belief is incorrect.

Initiative 26, in and of itself, will not make abortion illegal.  It does not purport to do so and its passage will not lead to existing statutes being applied in a way that makes it so.  There are multiple homicide statutes in the Mississippi criminal code.  Those statutes do not refer to crimes against a “person,” but rather, crimes against a “human being.”  One of those statutes, Miss. Code Ann. § 97-3-37 already treats an unborn child “at every stage of gestation from conception until live birth” as a “human being,” and yet, general homicide statutes have never been applied in the context of abortion.  Why?  In part, because § 97-3-37 provides that “the provisions of this section shall not apply to any legal medical procedure performed by a licensed physician or other licensed medical professional, including legal abortions, when done at the request of a mother of an unborn child or the mother’s legal guardian, or to the lawful dispensing and administration of lawfully prescribed medication.

Merely defining an unborn child as a person will not change the criminal code for how an individual harming that person might be punished.  For that to happen, the existing statutory scheme would have to be amended.

Critics have raised questions about whether the amendment would prohibit abortions in cases involving the life of the mother and rape.  Since the amendment does not, itself, prohibit access to abortions, it does not specifically address these extremely rare, but difficult, ethical questions.  The Mississippi legislature has, however.  In no less than three statutes (Miss. Code Ann. § 97-3-3 (abortion restrictions suspended by Roe) Miss. Code Ann. § 41-41-73 (partial-birth abortion restrictions) and Miss. Code Ann. § 41-41-45 (law passed to go into effect 10 days after Roe is overturned)), the legislature has made clear its intent, with express exceptions, not to restrict abortions necessary to save the life of the mother or in cases of rape.

 

In sum, the amendment does not, on its own, make any abortions illegal and the legislature has made very clear its intent to except instances in which the life of the mother is in danger or rape cases from restriction.

(3) Will Initiative 26 prevent termination of an ectopic or tubal pregnancy?

Since the personhood amendment does not, on its own, make abortion illegal, then the obvious answer to this question is “no.”  As noted above in the answer to Question No. 1, the purpose of the amendment is to encourage the legislature to act to restrict abortions, and in doing so, set up a challenge to Roe v. Wade.  The form of restrictions put into place by the legislature would be up to the legislature.  At present, existing law provides for the termination of an ectopic or tubal pregnancy.  Additionally, as explained in the answer to Question No. 2, the legislature has made its intent clear no less than three times to exempt abortions performed to protect the life of the mother or in cases of rape from restriction.  An ectopic or tubal pregnancy certainly would certainly implicate the life of the mother.

(4) Will Initiative 26 subject physicians who terminate an ectopic or tubal pregnancy to criminal prosecution?

Since the personhood amendment does not prevent the termination of an ectopic pregnancy, its passage logically would not subject physicians who terminate an ectopic pregnancy to criminal prosecution.  This is confirmed, in part, by the exemption from prosecution contained in Miss. Code Ann. § 97-3-37, by the fact that the legislature has always recognized an exception to any abortion restrictions in favor of protecting the life of the mother and by  Miss. Code Ann. § 97-3-17, which provides protection from criminal liability for accidental homicide.  The latter statute serves as important confirmation of the protection extended to physicians where the “intent” of the termination of an ectopic pregnancy is saving the life of the mother and not ending the life of the child, even if that is the consequence of the action.

(5) If Initiative 26 doesn't put physicians at risk of criminal prosecution, why are some physicians and medical organizations opposed?

The answer to this question likely varies with the physician or organization.  Some of the individuals and some organizations may be philosophically opposite of the pro-life movement and may not want to see abortions restricted.  Some individuals or organizations may have a financial interest in maintaining the status quo.   It is my suspicion that the vast majority of physicians have been confused by the full-frontal assault on the amendment by pro-abortion advocates and are genuinely concerned.  Fear is a powerful motivator.   One of the problems with this debate over Initiative 26 is that the focus has been placed on dueling physicians and physicians have been asked to answer or assume the answers to tough legal questions.  From there, it’s snow-balled

(6) Will Initiative 26 subject women who have miscarriages to criminal prosecution?

This is probably the accusation that has bothered me the most.  One of the reasons it has bothered me is because I first saw it argued by a “law professor” from Ole Miss.  That particular law professor was either being disingenuous or has no business teaching law and I’ll explain why.  In the first year of law school you learn that in order to be convicted of a crime the prosecution must prove that you committed the “actus reus” (that you did the criminal act, i.e. kill) and the “mens rea” (that you had the required criminal intent or a “guilty mind”).  The truth is that it is arguable that UNDER EXISTING LAW, a woman who has a miscarriage might be charged with a crime if it can be shown that her action caused the death of the unborn child and that she had the required knowledge and criminal intent at the time she undertook the action.  In fact, I recently heard of such a case in North Mississippi.  The personhood amendment would not make it any more or less likely that a woman would be charged with a crime after suffering a miscarriage.

(7) Will Initiative 26 make criminal the use of contraceptives?

If the question pertains to the use of contraceptives that prevent ovulation or fertilization, the answer is a quick and easy “no.”  If the question pertains to the morning-after pill, the answer is a little more complicated.  Obviously, the use of the morning-after pill is meant to prevent a fertilized egg from being carried to term.  Under the personhood amendment that fertilized egg would be considered a “person.”  Since the personhood amendment does not, itself, prohibit abortions, the logical answer is that it would not, in and of itself, prevent the use of the morning after pill.  It could be argued that the exemption found in Miss. Code Ann. § 97-3-37 speaks to this point.  However, I have not found any specific statute dealing with the legality of the morning-after pill.  Of course, I happen to believe that the morning after pill is unethical to begin with, so I wouldn’t be torn up about its discontinuance.  The reality, though, is that being charged with a crime for using the morning-after pill is virtually inconceivable where the ability to prove that a user had a fertilized egg at the time of consumption and that the morning-after pill prevented it from being carried to term is a virtual impossibility.

(8) Will Initiative 26 end access to in vitro fertilization?

The answer to this question is “no.”  In vitro fertilization involves the creation of a person (a fertilized egg) under the personhood amendment.  Where the amendment might effect in vitro fertilization is in inhibiting the destruction of fertilized eggs once created, but it would not end access to in vitro treatments.

(9) Why are some religious leaders opposed to Initiative 26?

As with the answer to the question of divisions in the medical community, the answer to this question likely varies between denominations and the personal philosophies of the clergy that have opined.  For instance, Bishop Joseph Latino’s opposition was not rooted in substance, but in a belief that we should push for a national end to abortion.  One clergy member I spoke to in opposition has indicated publicly a concern over “life conflicts,” which I can only assume means life of the mother circumstances, but when questioned privately expressed an understanding that the initiative did not create a universal abortion restriction and that her issue was with the challenge to Roe v. Wade, itself.   Of course, there are plenty of religious leaders who have come out in favor of the initiative, but seemingly have gotten less media attention, including the Executive Director of the Mississippi Baptist Convention, Jim Futral

It’s not my intention to get into a “I’m more Christian than you” argument in answering this question, but I will say that my understanding of Scripture instructs me that all life is pre-ordained by God and that our interference is a violation of His will.  I hope all Christians will take a lot of time praying about this and will surrender their hearts before voting.

(10) What will Initiative 26 cost the state of Mississippi?

Some have raised questions about the “stewardship” of this amendment, arguing that it will come at a substantial cost to the state once assuredly impending litigation commences.  The first thing I would say to this argument is that in order to be able to restrict abortion in the United States, the pro-life movement either has to pass a constitutional amendment to the U.S. Constitution or it has to find a method to overturn Roe.  Passing a constitutional amendment to the U.S. Constitution is about as likely as “this guy” winning a gold medal in women’s gymnastics.  Not only that, but there is a legitimate argument that this shouldn’t be a national decision, that consistent with our founding, this sort of public policy decision should be made on a local level by local representatives elected to represent local interests.  Criminal law has always been the almost exclusive province of the states.

So, if passing a constitutional amendment to the U.S. Constitution isn’t remotely feasible or the best course, that means we’ve got to figure out a way to overturn Roe.  Any such effort is necessarily going to involve litigation.  If you’re not willing to have litigation, then you’re willing to live with the status quo indefinitely.  Since 52 million babies have been aborted in the last 37 years, I’m personally not willing to live with the status quo indefinitely.

Okay, okay, so enough with the preface.  What will it cost?  The quick answer is “I don’t know, but not much.”  First of all, the attorney’s at the Attorney General’s Office get paid a salary to defend the Mississippi Constitution and Mississippi statutes.  That’s what they would be doing here and I’d say defending law that protects life is a worthy expenditure of their time.  No one blinks at the fact that we spend a boatload of money every year catching and prosecuting criminals.  Is protecting life as a matter of public policy not as important if you believe that an unborn child is, in fact, a life?  Beyond that, the truth is that the Attorney General’s Office wouldn’t have to do much.  Everyone in Mississippi is familiar with the fact that our AG frequently farms out civil litigation to outside counsel.  It would be no different here.  Individual attorneys and pro-life organizations would gladly donate time and resources to challenge Roe v. Wade.  I know, because I’m one of the ones who would.  The only difference between this outside contract and the ones we normally read about, is that the attorneys volunteering their time wouldn’t be looking for a contingency contract, just a chance to fight for life.

(11) What does Initiative 26 say about cloning?

There’s been some talk that Initiative 26 sanctions human cloning because it mentions that a cloned human is a “person,” too.  This position is ridiculous and shows you how desperate some people who are in the “I’m pro-life, but…” crowd are to find a reason to oppose Initiative 26.   Human cloning is illegal in the United States.  However, that may not always be.  The personhood amendment, if passed and successfully defended before the U.S. Supreme Court, would be around for a long, long time (constitutions aren’t amended with frequency).  The inclusion of a cloned human as a person is simply anticipatory.  Hopefully, human cloning will never be legal in the U.S. or Mississippi, but if it ever were to become legal, this would protect cloned humans from being made to harvest organs.  It’s just that simple and is actual pretty smart/forward thinking.

(12) Who should make these decisions?

This is a pretty open ended question that touches on the role and structure of government.  Some pro-abortion advocates consider pro-life advocates, who are customarily conservative, to be hypocritical.  The line goes something like this, “you want small government and liberty for everything else, but then you want to control a woman’s choice.”  Where the pro-abortion advocate errs with that argument is that he or she does not acknowledge that the pro-life advocate recognizes the unborn child to be a life or a person.  Even the staunchest limited government conservative wouldn’t advocate for doing away with laws that prohibit murder.

It may be helpful to think of it in terms of the Declaration of Independence, as well.  The Declaration provides that we were endowed by our Creator with certain unalienable rights, that among them is life, liberty and the pursuit of happiness, and that to secure these rights governments are instituted among men.  Life is one of the basic natural rights and securing these basic natural rights is the very point of government.  So the protection of life through homicide statutes makes sense (to conservatives and liberals alike).  Accordingly, it makes equal sense for the government to protect the unborn if you think the unborn to be persons.  Some hardcore libertarians and some result-oriented liberals may argue that the right to life doesn’t trump the right to their own liberty, but if your liberty interests allow you to invade the basic natural rights of others, then no one’s rights are safe.  In other word, the right to liberty does not permit you to deprive another of their life or liberty.

So, starting at the point that the government has the right to be involved in these decisions for the protection of life, the question then becomes which level of government should be making these public policy decisions?  As I mentioned above, our history and tradition dictates that criminal law is the almost exclusive province of the states.  For 200+ years, abortion law was decided on a state-by-state or territory-by-territory basis.  You won’t find any reference in the U.S. Constitution to a right to an abortion and you won’t find any reference in Article I, Section 8 of the U.S. Constitution to Congress having the authority to decide on “reproductive rights.”  The 10th Amendment pretty clearly reserves all rights not expressly given to Congress to the states and the people.  For all of those reasons, and because a cohesive national policy would be even more difficult than what we are experiencing now, I think these matters of public policy should be made at a local level by local representatives.  In other words, I’d prefer my elected legislature make these types of important public policy decisions than nine unelected Supreme Court Justices in Washington, D.C.  Of course, getting to that point means convincing those nine Justices to reverse Roe v. Wade…which is the point of the personhood amendment.

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If you’ve gotten to this point, you’re a trooper.  I know this is long.  I hope it’s helpful.  It could have been put together more succinctly and if I had more time to write, it would be shorter and more coherent.

Let me be very clear in summary.  The personhood amendment does not prohibit the termination of ectopic pregnancies and it does not subject physicians to prosecution for doing so.  It does not subject mothers to prosecution for having a miscarriage.  It does not dictate to the legislature whether exceptions should be made for life of the mother or rape cases and the legislature has already made its intent clear on those topics by creating exemptions in no less than three statutes. The initiative does not outlaw contraceptives or in vitro fertilization, though it may, and justly so, inhibit the destruction of embryos.

The question before the voters is not one of unintended consequences.  It is one of life.  37 years after Roe over 52 million abortions have been performed in this country.  52 million lives deprived of an opportunity to grow and learn and contribute to our society.  There are those who would say to wait for a national solution.  There are those who say that this will be overturned by the Supreme Court in the long run anyway, that it is an exercise in futility.  In response, I say those of us who believe that life begins at conception have waited long enough and life is worth fighting for.  I’m voting Yes on 26.  I’d encourage my fellow Mississippians to work through all the misinformation and join me in standing for life.

Russ Latino