Mississippi attempts to define the start of personhood

Reporting from Clarksdale, Miss.

Gail Giaramita was walking door-to-door in this old cotton town on a recent afternoon, genially informing voters about the simple choice they faced when it came to Initiative 26, the statewide ballot measure that would define personhood as beginning at the moment of fertilization.

“If you believe that the unborn are human beings, you need to vote yes,” Giaramita explained to W.L. Wilkins, proprietor of Big Mama’s grocery store. “If you believe that women should continue to have the right to abort their babies, you need to vote no.”

If that’s all there was to it — if Initiative 26 would simply ban all abortions, even in cases of rape or incest — this proposed amendment to the state Constitution would be controversial enough. But opponents of the measure are warning of other potential consequences, including a ban on many birth control pills and a severe hampering of popular infertility treatments.

Proponents call these charges untrue “scare tactics.”

Either way, the measure’s passage would count as an unprecedented attempt to nullify the abortion right granted under Roe vs. Wade. Personhood USA, the main supporter of the Mississippi measure, says a victory here could “change [the] abortion debate,” as part of a “larger, global movement to define when life begins in an effort to undercut the case for legalized abortion.”


At the same time, however, many observers, including some key antiabortion activists, expect the initiative to be immediately challenged in federal court, and probably struck down, with new rulings that may end up strengthening the hand of abortion supporters.

Among the doubters is Joseph Latino, the Roman Catholic bishop of Jackson, Miss., who has called the personhood effort “noble,” but declined to endorse it, warning that it “could ultimately harm our efforts to overthrow Roe vs. Wade.”

The idea of ending abortion by retooling the state-level legal definition of a person is not new, but it may have its best chance of success in Tuesday’s vote in Mississippi — the most conservative state in the nation, according to a Gallup poll released in February. Both Democratic and Republican candidates for governor and attorney general here support the initiative, and as of last month, the “yes” faction has a substantial fundraising lead on the “no” crowd.

“I think our chances are very good,” said Les Riley, the initiative’s sponsor and founder of the group Personhood Mississippi. “But I don’t believe in chance. I believe in providence.”

In recent years, a number of states have considered and rejected similar proposals, most notably Colorado, where propositions were voted down in 2008 and 2010. Those efforts and the one in Mississippi were backed by Personhood USA, a Colorado-based group that has attracted antiabortion activists fed up with waiting for the U.S. Supreme Court to tilt in their favor.

The group is hoping to put similar initiatives before voters in a number of states next year, including in California, where supporters plan to begin gathering signatures in January, President Keith Mason said.

In Mississippi, the initiative’s opponents are characterizing it as a case of government overreach, in apparent deference to the state’s conservative tenor.

One TV ad from the “vote no” group Mississippians for Healthy Families features a rape victim who says the initiative goes “too far.”

“It’s perfectly acceptable to be pro-life and against Initiative 26,” she says.

Though few top state politicians of either party have criticized the initiative, medical groups have. The Mississippi State Medical Assn. has warned that if the initiative passes, doctors could be charged with murder or wrongful death for “employing techniques physicians have used for years.”

The Mississippi Nurses Assn. has said that some birth controls pills could become illegal, because the hormones they contain not only prevent ovulation, they might prevent a fertilized egg from implanting into the uterus.

A group called Parents Against MS 26 argues that in vitro fertilization would be essentially rendered ineffective because the initiative could ban the freezing of leftover embryos created as part of the IVF process. The American Society of Reproductive Medicine has stated that the initiative would “thwart the ability of those who suffer from infertility to seek treatment appropriate to their disease.”

The group Yes on 26 has called these and other concerns “scare tactics” promulgated by national groups such as Planned Parenthood and the American Civil Liberties Union. The initiative, proponents say, would not ban in vitro fertilization per se, only the destruction of unused embryos. Doctors, they say, would not be prevented from saving the life of a woman during a problematic pregnancy. And they promise that “most forms” of birth control pills would not be banned.

If passed, the interpretation of the law would not be up to the initiative’s authors, but to the courts, and possibly the state Legislature, said I. Glenn Cohen, a Harvard Law professor who has been following the issue.

On the streets of Clarksdale, Giaramita, a 56-year-old volunteer for the Yes on 26 campaign, made her case with the sweet, Bible-based style she honed in 2010; she had bid for a congressional seat as a member of the conservative Constitution Party but lost.

She tried to keep her message focused on abortion, and found a largely receptive audience as she passed out handbills with a photo of a fetus and the message, “Give me a chance. I am a person.”

She had the vote of Oliver Hicks Jr., a retired carpenter who gave her a hearty “Amen” as she made her pitch.

Hicks said God did not want us to kill “unborn kids.” As for the other issues? “That’s just something they’re saying,” he said.

James Bopp Jr., an attorney and well-known antiabortion activist, has outlined what he believes to be the most likely legal fate of a personhood amendment like Mississippi’s: A federal circuit court would strike it down. An appellate court would uphold the decision. And the Supreme Court would decline to review it.

The only ones who would gain in that scenario, he argues, would be the opponents’ lawyers, who would collect statutory attorney’s fees from the state.

“The effort will have enriched the pro-abortion forces for no gain for the pro-life side,” he wrote in an influential 2007 memo on personhood amendments, which he said still reflected his position on the issue. “In fact, there will be a loss because there will be yet another federal court decision declaring that state law on abortion is superseded by the federal Constitution.”

The Liberty Counsel, a conservative public-interest law firm, has argued that it is “by no means certain” that a lower court would find a personhood amendment unconstitutional. The group sees “no alternative to a personhood approach that offers any chance of ending abortion in the foreseeable future.”

Brad Prewitt, executive director of the Yes on 26 campaign, said supporters can’t worry about how things will shake out in the federal courts. Rather, he said, they need to focus on what’s right.

Giaramita, traipsing between lawns in Clarksdale, agreed.

“This is not an intellectual decision,” she said. “This is not a political decision. It’s a moral decision.”