An Examination of Mississippi’s Proposition 26

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.

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22 thoughts on “An Examination of Mississippi’s Proposition 26

  1. Pingback: A Person’s A Person, No Matter How Small!

  2. This is excellent on every level and I have shared it with a variety of people who are wrestling on those different levels.

  3. I have a couple of issues with your logic. Firstly, if you accept the “functional equivalent thereof”, then you’d have no problems giving a humanoid robot, or artificial intelligence, the same rights (since they could be considered “functional equivalents” of human beings). How about prosthetic limbs (again, functionally equivalent components)? Are you against the disposal of used prosthetics for moral reasons? At some point, it becomes absurd.

    Secondly, you suggest (re: IVF and stem cell research) that “If the fertilized egg is actually a person, then these things are not good”, which is fine but which begs the question. Considering that a fertilized egg has no brain or nervous system at all, I would argue that it is not a person at that point. It would seem to me that “personhood” is tied inextricably to viability. Since the fertilized egg is 100% non-viable without the mother, it is not a person. Now, I am not here to try and set the viability threshold to define “personhood”, but fertilized eggs have no viability at all.

    I appreciate that you have certain beliefs, and that those beliefs instruct you in certain ways. However, science has made certain discoveries that contradict those beliefs in certain ways (unless you are suggesting that a soul enters the egg at the moment of fertilization, in which case I ask you: Where does it reside?). Consciousness comes from having a brain. No brain, no consciousness, no “person”. The separation of church and state means you aren’t allowed to impose your beliefs through legislation.

    If you can devise some kind of non-religious argument about when a person becomes a Person, by all means present it.

  4. Emily and Dawn,

    Thank you very much for your kind words. I’m happy to help the conversation.

    Ajollynerd,

    I appreciate your comment, but I think it has a few problems. To your first point about “functional equivalent,” I handled that objection in the post already. The immediate context suggests that “functional equivalent” refers to “fertilization.” This is not a generic term for intelligence. It refers to the meeting of a sperm and an egg. This disarms your reductio.

    To IVF, you are skipping past what I said prior to that statement. I said that the *order* of the reasoning matters. We must first decide what a person is, and then we can decide whether things like IVF are good. So I wasn’t arguing in a circle. I was pointing out the need to define the term in order to form appropriate premises.

    Your understanding of separation of church and state is also inaccurate. The separation of the institutions refers to *establishment.* The 1st amendment says that congress shall not make laws respecting the establishment of a religion. It does not say that religious convictions are forbidden from playing important or even decisive roles in legal thought. If it did, then that would be a violation of many individuals’ religious consciences . Legal personhood is itself a consideration that goes beyond science and into philosophy and ethics, thus first principles will play a decisive role in its definition (and science cannot actually speak to concepts like the soul, since it is immaterial). But for a natural law argument you can reread my first point in the second section which referred to the classical definition of person in relation to nature and the philosophical concept of teleology.

  5. Two relevant links have been brought to my attention:

    Cardinal Ratzinger, the current pope, has written: “The human being must be respected – as a person – from the very first instant of his existence,” and “Thus the fruit of human generation, from the first moment of its existence, that is to say from the moment the zygote has formed, demands the unconditional respect that is morally due to the human being in his bodily and spiritual totality. The human being is to be respected and treated as a person from the moment of conception; and therefore from that same moment his rights as a person must be recognized, among which in the first place is the inviolable right of every innocent human being to life.”

    http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_19870222_respect-for-human-life_en.html

    The Presbyterian Church in American has written: “God in His Word speaks of the unborn child as a person and treats him as such, and so must we.”

    http://pcahistory.org/pca/2-015.html

  6. “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.”

    That’s begging the question. You’re already assuming in that sentence that the fetus is a person. There are certainly legal critiques of Roe v. Wade to be had, but how you frame that particular one doesn’t make sense to me.

  7. Spencer,

    You have to read my argument in order and in context. I grant that if you don’t believe that the entity is a person, then you should vote against it. However, my point later on was to those who “don’t know.” If you “don’t know” then it is not appropriate to “deny personhood” in order to protect others. If the entity that is being denied personhood is in fact a person, then such a decision is wrong.

  8. I don’t see how a handful of cells, without a single synapse, can house a person. It is biologically and neurologically nonsensical. Are squirrels lumberjacks of oak trees for all the acorns they eat?

  9. No exceptions for rape or incest. What about the life of the mother? Would intervention/termination be allowed in cases of ectopic pregnancies?

  10. To Baliton Fargas

    A human zygote develops into nothing but a human. If degree of development were a determining factor in personhood, a newborn would be less human than a 90 y.o. man. Does an infant merit less protection under the law than the fully developed adult based on his or her degree of physical and mental development? And if we accept that an infant is as much a human as an adult, albeit one in a less advanced stage of development, then why is the human zygote–in its initial stages of development–not as fully human (if not as fully developed) as the newborn or the adult?

  11. You bring up some good points, but you seemed to only inadvertently touch on what I think is really one of the main issues and biggest fears of the “Pro-Choice” camp: the slippery slope. If a woman’s ability to [legally] choose abortion is taken from her, what other choices will be taken from her? Will there then be a push to strongly encourage or even enforce good behavior in women during pregnancy?

    “Samson’s mother was asked to change her behavior *prior even to conception*.”

    This suggests that there might even eventually come debates over how women should behave before getting pregnant. If certain groups of people get the government to legally declare life as starting at fertilization and outlaw abortion, will that be enough? Where will the line be drawn?

  12. “Apparently these people are bothered by the phrase “functional equivalent thereof.” … The immediate context gives all of the necessary information to see that “functional equivalent” means, “any technique which fertilizes an egg.”

    I disagree. The plain wording says “fertilization, cloning or the functional equivalent thereof.” Namely, the functional equivalent of fertilization or cloning.

    You assume that the “functional equivalent” must be achieved at a cellular level. If so, you should be aware that cellular systems are already being embodied in computers and software. See, .e.g., The World: In Silica Fertilization; All Science Is Computer Science, The New York Times, http://www.nytimes.com/2001/03/25/weekinreview/the-world-in-silica-fertilization-all-science-is-computer-science.html?pagewanted=all&src=pm “Researchers have long distinguished between experiments done in vivo (with a living creature) and in vitro (inside a glass test tube or dish.) Now they commonly speak of doing them in silica — as simulations run on the silicon chips of a computer. There are computational chemistry, computational neuroscience, computational genetics, computational immunology and computational molecular biology. … A network of nerve cells or a complex molecule comes to life as an animation on a phosphorescent screen — to be electronically prodded and poked, manipulated with a fluidity not possible in the real world.” Similarly, there is an entire field of research devoted to artificial neural networks. http://en.wikipedia.org/wiki/Artificial_neural_network

    However, functional equivalence need not be achieved at the cellular level. This is the premise of the Turing Test. See http://plato.stanford.edu/entries/turing-test/#ArgInfBeh

    For more, read the book, The Singularity Is Near: When Humans Transcend Biology by Ray Kurzweil.

    Lest you mistakenly think this is science fiction, remember that Amendment 26 is a constitutional amendment. If not invalidated at some point, its impacts may reverberate for a long, long time.

  13. I do not believe the purpose of Proposition 26 is to establish “Personhood”. Embryo, fetus, zygote, and any other form of abstracted scientific jargon all testify that “Personhood” begins at the moment of conception. I believe that Proposition 26 seeks to undermine the rights of women in that it undermine her choice in the fate of the life of her zygote as well as herself. While I am not generally in support of abortion, there are some proponents of Proposition 26 that deeply trouble me. On Yeson26, in answer to some common questions, it is asked ‘ “Will Personhood prevent a doctor from saving the life of a mother with a problem pregnancy?” NO! Under Personhood the doctor would be required to save both lives if possible; but in the hard cases where the baby is unviable, the doctor would save the life of the mother.’ I am forced to ask what is to become of the life and right to Personhood of the mother if the baby’s life is viable only if she is refused-based on this law, to receive treatment- such as chemo which might otherwise save her life? What if a woman has other children to care for? I am sure that if Proposition 26 is successful neither a woman’s right to Personhood or the impact the loss of her life upon her family will be taken into account. In this point Proposition 26 does indeed go too far. The next question: ‘ “What about rape and incest?” Personhood will prevent a baby conceived in rape or incest from being executed for the crime. Women who have borne a child conceived in rape testify that the baby is a blessing rather than a continuation of the assault, and placing the child for adoption remains an option.’ According to http://www.pandys.org, conception from rape occurs less than one percent. One should note that nearly all rape victims are offered the Morning After Pill. US rape statistics detailed on http://www.crisisconnectioninc.org, states that “61% of victims are under the age of 18.” This statement definitely gives one pause. That over half of victims are children! Of the less than one percent impregnated, many are children! Therefore, Proposition 26 places the life and rights of one child over another? Of a child over its mother? Proposition 26 fails to take into account the psychological damage that occurs due to rape. Certainly a pregnant rape victim is traumatized and confused; Proposition 26 ought not to decide the course of her life. Women who are victims of rape or incest must choose for themselves the course of action best for them: the psychological scars of such trauma are deep and long standing. It must be noted that victims of rape are also more likely to commit suicide, and much sensitivity and thought must be given to this issue. Again Proposition 26 puts two lives on scale to judge which is more important: mom or baby. I will note with great sadness that should such a woman (or child) be faced with a problem pregnancy and is refused life saving treatment because the baby’s life though viable, is only so without her receipt of treatment. The next question is, ‘“Will personhood increase healthcare costs in Mississippi? The question calls for another question: “Are Mississippi children a blessing and asset to the State or just an expense?” The fact is that there are families waiting to adopt every child if their natural parents are unable to raise them.’ Currently, with abortion laws in place, why isn’t “every child” “whose natural parents are unable to raise them” adopted? According to statistics on http://www.acf.hhs.gov, only 4% of children in care of the State are listed as pre-adoptive. Furthermore only 25% cases listed the goal for adoption; 54% of children remain with the State over a year. Studies have illustrated that older children face bias in adoption. According to AFCARS, 46% of children are 1-5 years old, 37% 6-10 years old, 14% 11-15 years old, 2% 16-18 years old. 2% of children are under a year old. According to a Caltech study, http://www.hss.caltech.edu/~lyariv/Papers/Adoption.pdf, these biases cross racial and gender lines with girls being nearly 33% more likely to be adopted than boys. Also, a baby who is not African American is seven times more likely to be adopted. Furthermore, reported abuse cases are listed at 28% of children in the care of the State. More statistics are listed at: http://www.childwelfare.gov/, http://www.acf.hhs.gov/programs/cb/stats_research/afcars/trends.htm. Clearly, the issue is not the cost of Personhood on the State of Mississippi. The cost is sociological. That is not to say that abortion solves the sociological problems faced, indeed, it does not; these are urgent problems that exist even in the midst of abortion and ever pressingly need to be solved.
    Proposition 26 philosophically seeks to determine which life is more important: the fetus or a woman? Well, indeed I must ask which came first the chicken or the egg?

  14. Fortunately it is a moot point for now. Prop 26 has been defeated, rejected by more than 55% of the electorate.

  15. Grace,

    If you think the results of the election make the discussion of the issue a “moot point,” I’m afraid you have missed the entire point of my post. These issues, which are moral and civic, have wide-reaching implications, and we will be challenged to interact with them in other forms in the future.

  16. I personally felt the wording of the amendment was left intentionally vague. If it defines a person upon fertilization then Law Enforcement and the courts would have to agree upon this. So who is to decide when its ok to terminate a potentially harmful pregnancy to a mother. We are all left assume what can or can’t be done with Prop26. It would have been nice if the MS Attorney General would have weighed in the subject. I am pro life and don’t believe in abortion, but do believe Prop26 was about way more than abortion. I believe this is why it failed. If they want to bring a reworded amendment back next year I will look at it carefully and make another decision then. We had one gentlemen at church that said that a vote yes was a vote against abortion and a vote no was a vote for abortion. I think this is misguided and Prop26 if it had passed may have been a very bad thing for the state of Mississippi.

  17. 9 November 2011

    Dear friends

    Three weeks after conception the brain has divided, other nervous systems continue to form, and the cardiovascular system begins to operate with the heart taking its first beat. Though humans are tiny at this stage of three weeks, a water bear is microscopic and nonetheless it is a water bear and dwarfed relative to a fetus at three weeks. Remember, at 22 weeks, an embryo has survived outside her mother’s uterus. Her name is Amelia Taylor, and she was 10 ounces at 9 inches.

    What is wrong with people who want to extinguish life at three weeks? Is there anyone, in the scientific community, who will deny that a human embryo is alive, and if it is alive, what kind of a life is it? Is it a plant? Is it other than human? Do human beings born mute, retarded, handicapped, majorly deformed, or severely premature get labeled nonhuman because they are underdeveloped?

    Empirically speaking, unborn humans die because of self-centered reasons and a perpetual desire to live unrestrained. Is this not the same behavior that has created a class of citizens so blind and greedy that they have lost touch with their representatives who have seized upon the opportunity to do the self-same thing to them, that men and women would have free reign to continue to do to the unborn, harm them for personal gain?

    Of course, a woman who drinks and smokes while pregnant is responsible for the damage she causes; the behavior is the same of a man responsible for harming her unborn child. Is an injured unborn human being less valuable? Therefore, within a woman, is a developing human any less human than a woman or a girl?

    It is shameful how this nation advocates taking life by minimizing the value of life. I will not be graphic, but is there anything more violent. If a woman is impregnated against her will, there is an innocent developing human being inside her, but calling conception a fertilized egg is self-propagandizing and an uneducated position.

    Using incorrect terms is a way of conning others and oneself by avoiding dealing with life’s realities. The psychological technique is well known. Breed confusion by insisting on false information and the truth becomes skewed, and, likewise, when attempting to escape guilt, who better to lie to than our consciences and those who will benefit from the behavior?

    The reality that all children are born with undeveloped brains and must go through yearly stages of development points to the same stages within the uterus. The amygdala illustrates this example, but do we value him or her less until he or she learns control or to speak and read? However, the state of our political system, like the spread of war, is a direct representation of such mentalities.

    Who will save those bent on self-destruction? Please, tell me?

    Sincerely,
    Joseph C. Carbone III

  18. Pingback: The Mount Holyoke News » » The revolutionary rejection of Proposition 26

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