Voters in Mississippi on Tuesday rejected a state constitutional amendment defining the unborn as persons, but pro-life observers expect the similar amendments to show up on many state ballots next November. Not all pro-life advocates supported the effort, reigniting the debate over the best ways to pursue pro-life legislation at the state level.
Mississippi's proposed amendment would have defined "person" as "every human being from the moment of fertilization, cloning or the functional equivalent thereof."
Personhood USA has filed efforts to include similar personhood amendments on 2012 ballots in Nevada, California, Oregon, and Ohio. Similar initiatives are in process in Oklahoma, Arkansas, Wisconsin, Michigan, Alabama, Ohio, North Dakota and Colorado, where amendments are gathering petition signatures, sitting in steering committees, or waiting for legislative approval for a referendum.
Phyllis Schlafly's Eagle Forum publicly opposed Personhood USA's initiatives in several states in 2009, calling it a hurtful gimmick.
Personhood amendment supporters this year included Family Research Council and the American Family Association, but groups such as Americans United for Life (AUL) and the National Right to Life Committee (NRLC) distanced themselves.
Americans United for Life was "officially neutral" on the Mississippi ballot issue, according to senior counsel Clarke Forsythe, but he said the amendment lacked clarity. "The language leaves itself open to being attacked for prohibiting things that it doesn't," he said, referring to warnings by critics that the amendment could impact birth control and in vitro fertilization (IVF). Forsythe says that critics might have a point. He believes the lack of legislative history behind the amendment would leave it open to interpretation by state courts, who might affirm the amendment's intended restriction on abortion or find loopholes.
AUL is taking a different tack at the state level, attempting to pass fetal homicide laws that punish harm to unborn children during violent crimes. The NRLC said in a statement that their focus next year is to elect a pro-life president and majorities in the House and Senate.
Personhood Mississippi has received its legal advice from Liberty Counsel, which expected it to go to the Supreme Court if it had passed.
Liberty Counsel founder Mathew Staver acknowledged the dispute within the pro-life community but said pro-life opponents of the measure did not have well-grounded concerns. "Essentially, they say that you need to go incrementally and that it's not the right time to take a case like this to the U.S. Supreme Court because you're not going to win," he said. "What possible worse scenario could we have when we've got abortions through all nine months of pregnancy? The only possibility is that it gets better."
Those who argue against a renewed Supreme Court battle suggest that a new ruling might wipe out any progress made since Roe v. Wade by upholding more liberal standards. In 1992, Planned Parenthood v. Casey the court's final decision to reaffirm the right to abortion hinged on one vote that changed the opinion at the last minute. However, some, such as Mississippi Bishop Joseph Latino, argued that new consideration could result in a stronger opinion that could harm pro-life efforts.
Latino wrote a letter to Catholic clergy opposing the initiative before it was put on the ballot. "I join with Catholic bishops in several other states in not endorsing personhood petitions to be circulated in our Catholic parishes. We have committed ourselves to working for a federal amendment and feel the push for a state amendment could ultimately harm our efforts to overturn Roe v. Wade," he wrote.
Personhood USA president Keith Mason said the definition of personhood promoted by his organization is different from previous pro-life legislation because it's "repackaged … down to the lowest common denominator." It's easy to understand and easy to convey to voters, he said.
Mason said his goal is to eventually push for a federal personhood amendment. Personhood amendments have been defeated twice in Colorado, but activists are set on making a third attempt.
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The New Pro-Life Surge | Political gains by U.S. conservatives unleash waves of anti-abortion legislation. (June 10, 2011)
When Life Begins | Do laws defining personhood help the unborn? (October 25, 2010)
When Does Personhood Begin? | And what difference does it make? (July 1, 2004)