Next week, the people of Mississippi get to vote on who they think people are. No, we're not talking about a return of Jim Crowe laws, but instead to a recent measure called Initiative 26, which seeks to extend the rights of personhood to all fertilized embryos, thus creating a new class of American citizen: the Embryonic-American.
I recently learned about this issue while listening to one of the
Nature magazine podcasts (one of many
physics podcasts I've begun listening to lately), and they have an article up about it on
their website. Over at
Slate they
brainstormed some strange implications of the new law, but I wanted to delve a bit more deeply into some of the unintended consequences, while
The New York Times has tackled it in a more straightforward manner.
On the one hand, I have long supported this sort of move on the part of the pro-life movement. My biggest criticism of the pro-life stance is that it's so obviously inconsistent. If a fertilized embryo is truly a person, why can't pregnant women get tax deductions for embryos like they do for actual children? Why don't they count toward welfare payments of pregnant mothers? If a pregnant woman has children's life insurance through work, then shouldn't she get the life insurance if she has a miscarriage? In no way do we treat embryos and fetuses like actual children, thus undercutting the merit of their whole argument.
Of course, this new tactic creates huge problems of its own, even for those who are pro-life. In the words of Jackson, MI, fertility specialist Dr. Randall S. Hines, an advocate for
Vote No on 26 (funded by Mississippians for Healthy Families), the amendment represents "biological ignorance." He goes on to say:
Once you recognize that the majority of fertilized eggs don’t become people, then you recognize how absurd this amendment is. (Source: NYT)
Specifically, the law runs the potential of drastically increasing the state's infant mortality rate and also making it illegal to practice many forms of fertility medicine, such as
in vitro fertilization. In fact, it runs the risk of creating an opening for extensive government regulations of pregnant women - an almost-literal "nanny state" situation - where anything that could potentially harm an unborn fetus would be outlawed.
What Is Initiative 26?
The precise
wording of Initiative 26 is:
Initiative #26 would amend the Mississippi Constitution to define the word “person” or “persons”, as those terms are used in Article III of the state constitution, to include every human being from the moment of fertilization, cloning, or the functional equivalent thereof.
The word "person" or "persons" show up a few times in Article III of the
Mississippi Constitution, but given that I doubt the fertilized embryos will exercise their rights to bear arms or are in danger of being convicted of treason, here are the ones that seem most relevant:
SECTION 8. All persons, resident in this state, citizens of the United States, are hereby declared citizens of the state of Mississippi.
SECTION 14. No person shall be deprived of life, liberty, or property except by due process of law.
So, taken at face value, it seems that the state of Mississippi is proposing that all embryos gain citizenship rights at the moment of fertilization. The obvious consequence (and motivation) for this is to make abortions illegal in Mississippi, and to
legally punish pregnant women whose actions lead to miscarriages.
Now, I suppose it could be argued that abortion has already been through "due process of law" since it's been through the court system. I'm not sure on the legal definition of "due process" in this case, so don't know what the ruling would be. Either way, it certainly gives Mississippi an opening to deny reproductive rights that have traditionally been upheld by federal law.
And it might not stop at Mississippi, because the
U.S. Constitution contains this in Article IV Section 2:
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
I'm no Constitutional scholar, but it seems to me that this implies that if you're a citizen of Mississippi, then you must be afforded the rights of citizenship in all of the states. I don't know that this'll pass judicial muster, but I'm pretty sure that someone will try to invoke this, resulting in some sort of court battle. This is basically the same tactic that liberals try to use to spread gay marriage through the Full Faith & Credit clause (Section 1 of Article IV, by the way), which is why I am opposed to such back-door routes to policy change. Those back doors can always swing both ways.
So those are the intended consequences of this legislation, but what about the unintended consequences?
Fertility Police
The first unintended consequence takes the form of the fertility doctors who are currently rising up to oppose the legislation. See, when someone goes to a fertility doctor because of trouble conceiving a baby, what often happens is that the eggs and sperm are fertilized outside the body and then implanted in the woman's uterus. The problem is that this is a costly process and not all of the fertilized eggs will survive, so they take and fertilize more eggs than they'll need, picking the most promising of the fertilized eggs for implantation.
And that means that when the process is over, there are some fertilized eggs left lying around that have to be ... dealt with.
I won't go into detail on this (you can get some good details
here, although it might be biased), except to say that it's probably an unintended consequence. While some extreme pro-life activists consider this on par with abortion, I've never really run into anyone who was particularly opposed to this aspect of assisted fertilization ... at least not when they've really been asked about it. The religious right is able to whip up a lot of loud support against embryonic stem cell research, but honestly, most people don't consider this as morally objectionable as even an early-term abortion. I doubt this was the goal of whoever posed the legislation.
Still, this law would clearly prohibit such activities, because these Embryonic-Americans are now citizens of the state of Mississippi. Mississippi cannot allow their citizens to be frozen (which carries with it a chance of killing the cell, as well) or handed off to some research laboratory. Fertility doctors in the state of Mississippi would essentially have to end all
in vitro fertilization activities, forcing Mississippi residents who are having trouble conceiving to travel to another state for the procedure.
Infant Mortality Explosion
As bad as the fertility thing is, there's a bigger (at least numerically) unintended consequence: Missisippi's infant mortality. If they really invoke the law, and treat fertilized embryoes as people, then the result is an astounding increase in their infant mortality:
Mississippi's infant mortality rate goes immediately from 1% to 44%!
In fact, as I'll show below, this is actually a best-case scenario, using the lowest numbers, the ones that are most favorable to Mississippi's prospects of maintaining a low infant mortality rate. These deaths come about because about 30% (or, possibly, a less-favorable 50%) of all fertilized embryos (persons, under the new law) spontaneously miscarry, largely due to genetic abnormalities that make them non-viable. In other words, the mothers' body rejects the fertilized embryo.
However, natural deaths or not, these miscarriages would now be deaths of legal people in the state of Mississippi, and they have to be accounted for. The state would certainly be legally bound to account for the more than 19,000 prenatal deaths in some way.
Now, the state's numbers probably won't actually explode like this ... because when it comes to calculating infant deaths they will, of course, do the reasonable thing and not count embryos as people!
The Numbers Behind the Explosion
For those who are interested, I'll delve into the numbers behind this. (If you aren't interested, you can scroll down to the next section.) First, let's consider a couple of noteworthy statistics (from the
BabyCenter website):
- 10 to 20 percent of known pregnancies end in miscarriage, 80% in the first 12 weeks
- 30 to 50 percent of fertilized eggs are lost before or during the process of implantation
In other words, it's a sad fact, but miscarriages are
extremely common. It's tragic on a personal level, but we're largely able to ignore the ramifications of these because, legally speaking, such early-term miscarriages "don't count" ... in fact, it appears from the numbers above that many of them happen without the woman even knowing that she's pregnant.
But, under this legislation, those miscarriages are all legally people.
According to the
2010 Mississippi Infant Mortality Report, published by the Mississippi State Department of Health, there are about 10 infant deaths for every 1,000 live births, or about 1% infant mortality. (The
CDC lists Mississippi as having a 10% infant mortality rate in 2005, but I can't find confirmation of that.) About 61.6% of these deaths are "neonatal," which means they take place in the first 28 days after birth, and the remaining 38.4% take place between 28 days and the first birthday.
Using
2008 data, it looks like Mississippi has about 44,943 live births per year.
If there are 44,943 live births, then assuming that there were no abortions in Mississippi (there's only one abortion clinic in the whole state,
according to NYT), and using the low-end 30% estimate of spontaneous miscarriages before/during implantation (and assuming that all of the remaining 70% make it to term), then that means that the low estimate is 19,261 spontaneous miscarriages within the state of Mississippi within a given year.
Here's the math:
Total fertilized embryos: 44,943 / 70% = 64,204
Miscarried fertilized embryos: 30% of 64,204 = 19,261
Current infant deaths: 1% of 44,943 = 449
Total embryonic & infant deaths: 19,261 + 449 = 19,710
New infant mortality rate: 19,710 / 44,943 = 43.9%
Birth Control Murder
While proponents of the law no doubt are happy to oppose abortion, it's possible that this law will run afoul of more traditional birth control as well. Many forms of birth control, in addition to limiting ovulation, also cause a thinning of the walls of the uterus, meaning that if a woman does ovulate and gets pregnant, then the egg will likely never even implant in the uterus. In these cases, the birth control pill will have resulted in the death of an Embryonic-American. Every woman who is taking the pill is now in danger of accidentally committing murder.
Mississippi: Nanny State
Taken to its extreme - as this law forces the state to do - Mississippi will be forced to make unprecedented legislation to protect its Embryonic-American citizens. Smoking will be outlawed. Drinking is a bit more unclear, since some evidence indicates that modest amounts of alcohol, such as white wine, can be beneficial while pregnant, while clearly drinking a fifth of Jack Daniels isn't beneficial for anybody, embryonic or post-natal. Is jogging while pregnant good or bad?
It would seem like miscarriages would need to be documented with death certificates, and perhaps there would even need to be investigations or autopsies to determine the cause of the prenatal death. So, while dealing with the trauma of a miscarriage, these 19,000+ women who have miscarriages will also have to justify their behavior to the state government.
In all, this personhood for Embryonic-Americans is just flat-out stupid on every level except one - the blatantly political attempt to make abortions illegal. In every other way, it will be (hopefully) ignored, because the consequences of actually following this law are absurd at best and potentially catastrophic at worst.
