Mississippi voters are casting ballots Tuesday on an amendment to the state constitution that would define life as beginning at the moment of conception.
Initiative 26 would define personhood as "every human being from the moment of fertilization, cloning or the functional equivalent thereof."
Though the text of the amendment is simple, the implications if it passes couldn't be more complex. If approved by voters, it would make it impossible to get an abortion in the state and hamper the ability to get some forms of birth control.
If the amendment passes, it will end up in front of the Supreme Court as a direct challenge to Roe v Wade. Naturally, this can put reproductive rights supporters on edge, but it's inevitable this would happen. Anyone that has followed this debate closely knew that it wasn't ever a question of "if", instead one of "when". If Mississippi doesn't pass this amendment (the last poll I checked this morning had it fairly tight), another amendment will come along, and another, and another. The goal among some of the factions of the anti-choice movement, no longer content with just bullying women by passing legislation that treats them like idiots (waiting periods), makes reproductive health a luxury of the rich (Hyde) or forces unwanted medical procedures on them (mandatory ultrasounds), is the quest to up the ante by taking on Roe itself. I'd argue they always have wanted this, but the tight structure of the establishment GOP prevented them from gaining too much ground. When a party uses these issues as nothing more then political fodder, the worst thing in the world would be to get what they claim to want. However, with the rise of movement conservatism and a bizarre sense among the right that nothing could possible be too fringe to pursue, anti-choicers are starting to eye the ultimate trophy to their own self-righteous grandstanding. And Roe is, overall, a pretty weak ruling.*
What they are missing is that there's a reason the more institutionalized, old guard misogynists are staying far away from personhood amendments such as the one coming out of Mississippi - this could end up spectacularly backfiring on the anti-choice movement, who has seen some great gains within the last decade when it comes to oppressing women. It's not that the ultimate goal is to overturn Roe, it is, but if the court is presented with the question of whether or not a zygote is a legal person, and as such, a protected entity, it's not going to be able to make exemptions here and there based on the whimsy of anti-choicers on a state level. This could be a major setback. The more activist wing of the anti-choice movement are prematurely banking on SCOTUS agreeing that zygotes are persons; but the truth is that bestowing personhood on nothing more then the requirement of something being a fertilized human egg leads to so many legal quagmires that SCOTUS would have a hard time handing the anti-choice crowd a victory. This would hold true even if we had reached a point where the courts stacked with right-wing ideologues in order to favor these sorts of rulings (which we haven't yet, although we are moving in that direction quickly, because Republicans, unlike Democrats, understand the importance of the court system while liberals stupidly vote for Nadar or don't vote at all so they can pat themselves on the back and feel all awesome and non-conformist and shit).
Mississippi Governor Haley Barbour amusingly points out some of the legal problems with Initiative 26 (while naively chalking them up to a problem with word usage):
“Some concerns that I had were about out of what I call ectopic pregnancies where the fertilized egg lodges outside the womb, say the fallopian tubes,” he said. “But there’s no question that the wording down here is what concerned people, not the idea that life begins at conception, but that the wording of it is.”
It's not a problem with the wording, Governor. It's a problem with the idea that you can establish legal personhood with something that is so fickle. Yes, if we legally define "person" with the fertilization of an egg, ectopic pregnancies are indeed legal persons. As are Hydatidiform moles. There is no way around that. And let's not even get started on the legal issues that will arise when we consider twinning (one fertilized egg dividing and developing into two separate entities long after personhood is granted) and chimeras (one fertilized egg absorbing the other, can we charge zygotes with murder yet? Probably not, but I bet we can charge the mother with creating a "hostile womb environment" that led to the death of that legalized and now absorbed dead person or something).
That's probably why it's a really fucking bad idea to classify "person" in this manner. And unfortunately for the anti-choice crowd, as it stands now, SCOTUS is probably going to agree.
I also feel that once we start taking it to the federal level it will start getting the attention that has been long lacking in recent years. My mother and I were discussing the Mississippi amendment this past weekend, she expressed frustration over the success of the GOP War on Women and the seemingly lack of care that these issues are getting - "I don't think women today realize how hard we fought for those things" is what she tells me. I realize some will think that statement is ridiculous, as we are seemingly embroiled in never-ending culture wars and abortion is just one of those topics where everyone needs to put in their two cents while at the same time really wishing you'd just shut up about it already. But it did stall for a while. I liked to joke after Obama was elected that hey, at least we might have a few years of peace where I don't have to talk about Hydatidiform moles again. And we did get that, if only briefly.
But a false sense of security or complacency often leads to apathy. Although the anti-choice movement is flawed in many ways, their ability to organize is not one of them, they never tire out. Which is why, as 2010 saw a massive wave of social conservatives flooding back into public office, we saw an increase of legal barriers to reproductive rights targeted at women even when it seemed absurd to do at a time when the concerns about the economy seemed to transcend the culture wars. In fact, the timing seemed so absurd that pro-choicers didn't really do anything to prevent it. 2010 was an election that was touted as being about the poor economy and job market, yet I think we saw more legislation passed regarding reproductive issues then we did any other issue. And the reason this happened was because while pro-choicers were trying to be the responsible ones, focusing on the things that matter instead of this culture war bullshit - the right wing was still doing the culture war bullshit. The fact that we set it aside because we were just too serious to deal with it right now just made it all the easier for them to be successful.
I feel this pattern has been consistent since the days after Roe. I mean, technically women have the right to an abortion, so we can relax now, correct? Like with most issues in this country, progressives have this stubborn idea that if we won it in the past, it can't be taken away. We won, fair and square. So we stop arguing, we stop fighting, we start to make a base camp at the bottom of whatever the next uphill battle will be and let the fire at the old camp burn out. The losers of history, however, have no need to do this. In fact, being the underdog is an amazing motivator. So while the slogans and campaigns and soundbites and protests for reproductive rights fade from the public eye and disappear from pop culture, the slogans and campaigns and soundbites and protests of the fight against reproductive rights have saturated it. And this is why you have so many well-meaning, starry-eyed teenagers of the newer generations waxing poetic about saving babies and posting this on The Facebook:
While having no clue what this sign means:
We are so accustomed to living in a society where we can take our reproductive rights for granted that it is hard for us to go back and remember what it was actually like without them. We can take to heart the pleas for "compromise" with anti-choicers because we have easily been able to ignore what the darker consequences of their movement really means for the rights of women, and what that says about their actual motivations. And we can cringe slightly while reproductive rights are chipped away at but be okay because after all, Roe is settled law, is it not?
Not really. For now, it's fine, but eventually, we cannot depend that it will just always exist to protect us. We need a wake up call. So perhaps the time is perfect for the anti-choice zealots to jog our memories about what sort of society they really want us to live in. So all I can actually say in regards to to Mississippi's Initiative 26 is this: Bring it.
*I'd rather pass the ERA. I feel women's protections in regards to reproductive health are due to their equal rights as citizens rather then an interest in protecting their privacy. Which is why, when discussions of personhood became repetitive and less of a challenge for me, I started arguing from the standpoint of zygotes being people - because hey, why not? - and found that it's not that clear-cut, you still have to argue successfully why special laws are necessary that ensure that pregnant women, and only pregnant women, are required to waive their rights away in order to sustain the rights of another. We see this demand for sacrifice in no other area of law. I think Ruth Ginsberg is attempting to create a safety net for women using this same sort of logic in case we do eventually lose Roe, her dissent in Gonzales v Carhart leans strongly towards the angle that this is overall an issue of equality.
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