by Max Brantley
If science and clarity count — and they should — the Mississippi "personhood" amendment would be defeated by that state's voters next week. But it seems unlikely a majority will delve into the many problems caused by adopting something that defines personhood as beginning with fertilization. That can mean many things, op-ed writers in the New York Times note today. They also note serious questions about whether the amendment will be "self-executing" and bring a range of criminal consequences to actions previously thought fully legal.
In this case it’s not clear whether the amendment would, for example, immediately redefine thousands of references to “human beings” or “persons,” including those in provisions governing criminal homicide, or whether additional legislation would be necessary. Because of this uncertainty, voters considering this amendment cannot tell what actions would and would not immediately be subject to prosecutorial investigation were the amendment to pass.
It is obvious why those who support abortion rights will be uncomfortable with this amendment. But opponents of abortion rights may find that it covers more than they bargained for, including some forms of in vitro fertilization and birth control. Indeed, even opponents of abortion rights who would like nothing more than to give the courts an opportunity to reverse Roe v. Wade may find this amendment a bad vehicle for doing so. Courts frequently read ambiguous language as a strategy to avoid raising serious constitutional questions. By endorsing a ballot initiative that is deeply ambiguous, pro-life constituencies could be inviting courts to read the amendment in a way that sidesteps the very constitutional question they want to force.