This Tuesday, the voters of Mississippi will have the opportunity to vote on Proposition 26 which states: “As used in this Article III of the state constitution, the term ‘person’ or ‘persons’ shall include every human being from the moment of fertilization, cloning or the functional equivalent thereof.” This is making national headlines as it is rightly seen as a strategic moment in legal history. The implications of Proposition 26 could affect a variety of issues involving the use of fertilized eggs. I do not wish to give a technical legal examination of Prop. 26. Such an examination has already been done quite well here. According to Professor Green, Prop. 26 will not do very much on its face. It certainly will not overturn Roe v. Wade as some have erroneously asserted. However, I do think that Prop. 26 is an important opportunity to examine our own thoughts and reactions about life and the proper role of government.
I have seen a number of very bad arguments against Prop. 26. I will handle them quickly.
- Prop. 26 pushes private values into the public square. – This is a variant of the old line, “You can’t legislate morality.” In point of fact, you can’t legislate much else besides morality. Take a look at our laws. Nearly all of them are grounded on morality. To the issue of “private values,” however, we can say that Prop. 26 is pretty decidedly public. It is seeking to define “person” in the state constitution. It is not trying to tell you what you should think about persons or how mommas and poppas ought to inculcate such persons. It is only addressing the state’s duty towards a person, and that is public by definition.
- Trust families, not politicians – This little slogan comes from the website http://parentsagainstms26.com/. It is seeking to use otherwise “conservative” and “small government” rhetoric against Prop. 26. The problem is that you cannot “trust families” to recognize a person’s legal rights. Families do not, in fact, have that jurisdiction. Families cannot decide to take away civil rights from their family members. This is really a rather silly slogan.
- Prop. 26 is too vague – This was actually one of the complaints that our governor made against Prop. 26 before he voted for it anyway. I’ve heard this from a number of people, but I cannot understand it. Apparently these people are bothered by the phrase “functional equivalent thereof.” This is not actually a vague statement at all, however. It is general, but it is not vague. The immediate context gives all of the necessary information to see that “functional equivalent” means, “any technique which fertilizes an egg.” This statement is much less vague than other expressions that are already well-established in law. “Due process” is just one example. There are any number of constitutional amendments which are open to multiple interpretations. That’s just the nature of law. General statements must be applied in specific scenarios by informed legal and political actors. Also, Prop. 26 is making an already-existing vagueness more specific. As it stands, the definition of “person” is in doubt and this proposition seeks to clarify it.
Now, those are the bad arguments. Unfortunately they are the most popular. However, I would not want to say they are the only arguments. Indeed there are a few points which require some clear thinking. I have friends who I consider to be good and intelligent people who are opposed to Prop. 26, and I have many who are undecided. I’d like to speak to a few of the more intricate points of this discussion.
- Though obviously informed by religious convictions, a supporter of Prop. 26 need not rely solely on the Bible. As a Christian, a pastor, and something of a theological political science practitioner, I would be the last person to say that we should leave our religious thought out of this conversation. However, it is still not the only consideration that is relevant. In classical thought, a “person” was understood as a particular instantiation of a “nature.” Further, among Aristotle’s four causes, the final cause was the most determinative of the others. Thus we could say that a thing ought to be defined in terms of its telos, and that it is most appropriate to work towards a thing’s fulfilling of its end. A fertilized egg’s telos is naturally a human person.
- “Personhood” in this conversation is a legal consideration. We are not dealing exclusively with biology or even sociology or psychology. There is a long-standing historical record to testify that slaves were once not considered legal persons. Though they were living, breathing, and thinking human beings, they were nevertheless not legal persons. This changed in America over time, and the change in the point of view was clearly influenced by moral, religious, and philosophical concerns. Even trickier is that fact that, today, Walmart is considered a legal person! It is important to remember that Prop. 26 is concerned with “person” as used in the MS bill of rights.
- The fact that Prop. 26 might have implications on other areas of life is not unimportant, but those implications are not themselves enough to settle the issue. One really ought to decide whether or not he agrees with the assertion of Prop. 26 first, and then he may examine the implications. After all, if an entity is a person, then the fact that its rights might conflict with yours is simply a reality.
- Closely related are the issues of in vitro fertilization (specifically the fate of the unused zygotes), stem cell (and other medical )research, and abortion in the cases of rape or incest. On more than one occasion these things are assumed to be obviously good, and thus Prop. 26′s possible prohibition of them is seen as a good argument against Prop. 26. The thinking is still backwards. If the fertilized egg is actually a person, then these things are not good. I do not mean to be offensive, but such is a necessary conclusion. To justify the taking away of civil rights (or human life!) on the basis of efficiency or scientific progress is immoral. For an excellent discussion on this matter, I would direct the reader to two sources: C. S. Lewis’s That Hideous Strength and The Abolition of Man.
- Many people have taken a position of caution based on honest ignorance. They say that we do not actually know when an entity becomes a person and so we ought not make legal decisions that presume that we do. This is a reasonable statement. I can sympathize with those who ask it, and I believe that if one truly does not believe that a fertilized egg is a person, then he ought not vote for Prop. 26. For those who do not yet know, I would offer a few thoughts.
- If we truly do not know if a fertilized egg is a person or not, we can imagine a few scenarios. The first is that the entity is not a person, and thus there is neither harm nor foul in violating its rights. As a non-person, it has no rights. The second is that the entity is not a person, but we protect its rights anyway out of a sense of caution. In this scenario, others are potentially encumbered by the fertilized egg’s rights, even though it should not have them. The third is that the entity is a person, but we do not protect its rights. Thus in order to protect others’ freedoms, we deprive the fertilized egg of its rights and perhaps even its life. To those of you who truly do not know, I would ask you what the safest route of procedure is. To not decide is not an option. Any action or inaction will result in the one of the three scenarios. We simply do not know with certainty which. Given that, what does prudence dictate?
- For Christians, however, I think we have added information that supports legal status being given to a fertilized egg. We could point to relevant passages about life in the womb, but those wouldn’t quite give us the need for legal recognition (and certainly not at the specific point of fertilization). We do have a passage which is appropriate, however, and that is Judges 13:4-5. This is not hyperbole or poetic rhetoric. It is historical narrative. In Judges 13:4-5, Samson’s mother is told that her son will be a Nazirite and so she must begin observing certain Nazirite restrictions in the present, prior even to his conception, so as not to cause him to violate those restrictions in the womb. The Nazirite status was a legal one, normally entered into by a consenting adult (see Numbers 6). In this case, however, the vow was being applied by God, and it was a life-long vow. Thus it had to begin at the earliest stages. In order to accomplish this, Samson’s mother was asked to change her behavior prior even to conception. This presupposes that at the moment of conception Samson would have a personal identity, a relationship with God, and the capacity to have legal status.
- Complicated legal situations may arise when the rights of multiple persons come into tension with one another. This is true already, and Prop. 26 is actually not adding to this complexity at all because those issues already exist and personhood is currently undefined. Any possible “difficult case” that I’ve heard as an argument against Prop. 26 can still exist without Prop. 26. Prop. 26 does not create those difficult cases.
- Further, it would seem to me that the proper way to move forward regarding legal conundra is not to deny personhood to one of the parties involved, but rather to continue the conversation, adding relevant clarifications and protections for the specific situations. Prop. 26 would not settle all or even any of these difficult scenarios. We would still need to discuss power of attorney, as well as the State’s duty to protect. But we must do that anyway.
Roe v. Wade actually has some insane logic on precisely this point. It says that, since it is unclear when life begins, it will decide to protect the mother’s rights up to a certain point in development and then after that point, it will protect the rights of the child in the womb. This is law by coin flip. In no sane universe does it make sense to settle a genuine legal dilemma by denying personhood to one of the two parties. We should either explore ways to respect the rights of all persons or clearly express our principles for limiting one party’s rights in a given scenario. In no case is it sufficient to simply deny personhood.
Those are my thoughts on the matter. I was initially not very motivated to participate in this discussion because I saw Prop. 26 as overly limited (exactly the opposite of its critics’ claims). However, witnessing and participating in a few recent conversations has proven to me that more than the specifics of Prop. 26 are actually at stake. Rather this is a strategic opportunity to state and clarify pro-Life principles as well as a consistent Christian legal thought. And if the national media is any trustworthy guide, Prop. 26 will be influential upon future legal decisions across the US.