Legal Analysis and Commentary from Justia
Posted In Reproductive Law

Mississippi Initiative 26: The Significance of Saying That a “Person” Exists From Conception to Death

This Election Day, Mississippi voters will have the opportunity to weigh in on Initiative 26, which would amend the state constitution to define a “person” as existing from the moment of conception.  Specifically, the initiative provides:  “SECTION 33.  Person defined.  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.”

Much debate over this initiative rightly centers on the legal and constitutional implications of a law that seemingly prohibits all abortion.  Banning all abortion is plainly at odds with extant U.S. Supreme Court precedent protecting a woman’s right to terminate a pregnancy.  Some observers therefore wonder whether the law represents an attempt to develop a test case for the Supreme Court.

The apparent absence of an exception for cases of rape or incest or even a threat to the pregnant woman’s life in this initiative, moreover, identifies it as extreme relative to numerous other pro-life efforts around the country in recent years.  In light of the audacity of the initiative, some have wondered why Democrats have not found more of a voice to oppose such a frontal assault on reproductive rights.

This column will focus, however, on a different facet of the Mississippi initiative:  the significance of using the word “person” to describe a zygote, an embryo, or a fetus prior to birth.  What does it mean to enter a debate about abortion with an assertion about whether or not an embryo is a “person”?

One Kind of Debate:  An Empirical Disagreement About Embryonic Development

Let us begin by asking what it means to say that an embryo is a person.  If I were to make this statement, I would be asserting one of two sorts of claims.

The first would be a factual claim about the nature of an embryo.  I might be saying that a human embryo has a set of qualities or characteristics that are empirically sufficient to make it/him/her a “person,” as independently defined.  In line with this interpretation, I might tell you that at some number of weeks, a fetus has a heartbeat, or reacts to sound.

Then, if you disagreed with me, you might respond that actually, I am mistaken about fetuses at those stages, and that they do not have a heartbeat or do not react to sound.  In having this dispute, you and I might agree that anyone who did have these qualities would be a person, but disagree only on whether the fetus, at a given stage, actually has those qualities.

A Second Kind of Debate:  A Disagreement About Moral Entitlement

Alternatively, if I were to say that an embryo or fetus is a person, I could be making a second kind of claim—a moral, rather than an empirical, one.  In that case, you and I might agree on the factual presence or absence of embryonic or fetal qualities at various stages.  We could agree, for example, that an embryo is unable to have a subjective experience of suffering or joy.  Yet we could disagree on what the moral implications of that fact are.

For instance, you might say, in this scenario, that because an embryo cannot experience anything, it has no present moral entitlements and accordingly triggers no moral duties vis-à-vis the pregnant woman or the larger community.  I might respond that experience is not a necessary condition for having moral entitlements or for triggering moral duties.  You could summarize your normative position by saying, “Embryos are not persons,” while I summarized mine by saying, “Embryos are persons,” but the debate would be about what factual predicate is necessary to trigger moral entitlements and obligations.  It would not be about the empirical facts regarding embryos or fetuses, for you and I would, by hypothesis, share a common understanding of the facts out there in the world.

In the first case (in which we disagree only on biological facts), our dispute can be resolved with greater knowledge about the physical world.  You and I can consult with someone who is well versed in fetal development and who can set us straight on when some particular set of qualities and capacities comes into being.  Once we have the facts, we will join hands and agree on what it would be right or wrong to do to the embryo or fetus, because we, by hypothesis, have the same moral view.

By analogy, if you shot a gun into a closet, I might condemn you for shooting a person, and you might respond that the closet contains only sweatshirts and jeans, not persons.  We could easily resolve our dispute by opening the closet and finding out what or whom I had shot.  If a man lies bleeding on the closet floor, then you will readily concede that I was correct.  And if instead we find a pair of jeans with a hole in it, then I will readily concede that you were right.  We are not arguing, in this case, over the meaning of “person,” but rather over the contents of a closet, a matter that is amenable to empirical resolution.

In the case of an embryo or fetus, there is not much dispute over the facts regarding the stages of gestation.  There is, however, a longstanding and bitter dispute over the moral implications of the physical facts.  The word “person” may therefore appear to be a factually descriptive term, but in reality, in the context of the Mississippi legislation and of abortion debates more generally, it is a normative word that tells us whether or not the speaker opposes or defends abortion—an act the facts of which are understood.

The Effect of Using a Seemingly Factual Word to Make a Normative Point

Given that people know what a zygote or an embryo or a fetus is, as a physical matter, we might wonder why people insist on debating whether an embryo or a fetus is or is not a “person.”  Everyone understands that we are actually debating the morality of abortion, and the use of word “person” does not add much to the story.

Thus, the Mississippi initiative could simply have said that killing an embryo is prohibited from the moment of conception.  Why does it instead say that an embryo is a person?

And why, by the same token, do pro-choice advocates assert that an embryo or a fetus is not a person, rather than simply saying that (and explaining why) abortion should not be legally prohibited?

What does the word “person” do beyond simply asserting (or legally codifying) a position on the issue of terminating pregnancies?

One answer is that even though there is little dispute over the facts of abortion or of embryonic and fetal development, the salience of various physical facts tends to trigger differing moral intuitions about the abortion question.

One pro-life bumper sticker says, for example, that “abortion stops a beating heart.”  The moral message is that abortion is wrong because—as the sticker explains factually—it terminates the life of someone with a heartbeat.

There is at least one problem with this statement, however:  some abortions do not, in fact, stop a beating heart (those that occur prior to the sixth/fourth week of pregnancy, depending on whether one counts from fertilization or from the pregnant woman’s last menstrual period).  Perhaps more importantly, those who oppose abortion do not typically consider the acquisition of a heartbeat a morally significant moment in embryonic and fetal development, such that they would support a right to abortion prior to this moment.  On the other hand, the notion of stopping a beating heart resonates with many people’s idea of murder, and the bumper sticker could therefore be effective in triggering moral disapproval in someone who is contemplating the abortion issue.

On the other side of the spectrum, some opponents of the Mississippi initiative have condemned the idea of a law that intrudes on personal decisions about “health care”.  If we focus on individual choices about health care, we are no longer thinking about the morality or immorality of killing an embryo or a fetus.  We are instead thinking about going to the doctor and having the power to accept or veto health care options that involve our own bodies.  Ordinarily, medical procedures do not involve killing anyone, so the expression “health care autonomy” does not bring to mind images of killing.

If I went to a doctor with an unsuspecting friend and asked the doctor to remove my friend’s heart and give it to me, no one would describe what I did as a simple attempt to get health care.  Not only my health, but another’s health and life, would also be at issue, and the decision could accordingly call for consideration by someone other than me and my doctor.  By focusing on health care in the abortion context, however, the advocate may distract attention from the embryo or fetus, even at stages of pregnancy at which facts about a fetus would likely trigger moral intuitions similar to those triggered by a newborn baby.

Words like “person” and “health care” thus function as a sort of emotional magic trick, through which an advocate takes a factual-sounding word that has a list of ordinarily associated attributes (with moral implications) and thereby causes the audience to think of those attributes and experience their moral pull, whether or not they are in fact present.

Using the word “person” brings to mind an infant, a child, or an adult—someone who is uncontroversially entitled to full moral consideration.  The word can thus trigger opposition to abortion even when the “person” in question does not have the qualities that one associates with persons at all.  An embryo, for example, may be a cluster of undifferentiated cells with none of the characteristics that describe infants, children, or adults (prototypical “persons”).

Meanwhile, on the other side of this issue, the term “health care” might make us think of having a mole removed or an appendectomy.  Thus, the use of that term can similarly prevent a listener from experiencing the moral revulsion that could result from contemplating the reality of a late-term abortion.

Conflating Facts and Norms

In debates about abortion, both pro-choice and pro-life advocates confront challenging normative questions about how they would respond to various factual scenarios.  On the pro-choice side, the later a woman is in her pregnancy, the more difficult it is to defend access to abortion in a manner that most people will find compelling.

This is not to say that there are no arguments for protecting a woman’s right to terminate a pregnancy at any stage and for any reason—there are arguments, and I myself have elsewhere offered some of these arguments.  It remains the case, however, that if a woman is into her third trimester of pregnancy and decides she no longer wants to remain pregnant, the process of terminating her pregnancy necessarily involves violence to a living, sentient being, and that simple fact has moral force for many people, even if countervailing arguments might nonetheless support a pro-choice resolution of the legal issue.

Saying that a fetus is “not a person” under these circumstances simply does not ring true for many listeners, if they are aware of the fetus’s actual stage of development and characteristics.  It might be more plausible to say that a fetus at this stage is a person, but that the person’s physical occupation of another person calls for a moral and legal approach that is distinct from what we ordinarily use in analyzing violence between two persons.  Asserting, instead, that the fetus is not a person elides moral arguments that might be relevant to the question.  In sum, late-term abortions raise challenging facts for those who are pro-choice.

On the pro-life side, challenging facts lie at the earliest stages of pregnancy.  During those stages, the zygote or embryo has none of the features that most people associate with moral entitlements.  The zygote or embryo does have human DNA, however, and pro-life advocates can accordingly call it a “person” as a way of saying that it is not a plant or a snail, neither of which would have human DNA.  But human skin cells also have human DNA, yet no one would call them “persons.”

To say that an embryo is a person because it has human DNA, therefore, only pretends to answer the important question about what it is that entitles an entity to moral personhood.  Along similar lines, advocates sometimes say that science has proven that a human zygote or embryo is a person, as though science—a source of factual information—can tell us whether the embryo or fetus is morally entitled to live.  In reality, though, science can do no such thing.

And if confronted with the normative question that is actually presented, many people would find counterintuitive the notion that a zygote has the same moral status as a newborn baby, much as they might find counterintuitive the notion that a late-term fetus does not.

Does Any of This Matter?

It is important to acknowledge here that ultimately, what most concerns people on both sides of the abortion debate will be the answers to the bottom line trio of questions:  Will the law prohibit (or otherwise burden) abortions?  If so, will there be exceptions?  And if so, what will the exceptions include?

If a law provided, for example, that a zygote is a person but that consensual abortion is a defense to all laws barring violence against persons, pro-choice advocates would surely consider passage of the law to be an important victory.

And, if, instead, the law characterized persons as including only those who are born, but still criminally prohibited all abortions, pro-life advocates would, as surely, feel vindicated by passage of that law.  Given that this is true, does it even matter whether we refer to an embryo as a “person” or not?

I suggest that it matters a great deal.  Debates about abortion do ultimately lead to legal rules, and those legal rules will matter more than language to those who care about the issue.  But the language we use in discussing moral questions is nonetheless important, because it either provides or fails to provide a foundation of legitimacy for the legal rules that follow.  This is why proponents and opponents of a legal right to abortion, respectively, have long offered narratives that sound like they could be about entirely different factual events, even though they both purport to describe the same physical process by which a pregnancy is terminated.

This may also explain why the Mississippi initiative that is now before the voters does not simply state that all abortion is prohibited, or that no one may intentionally end the life of a zygote.  It says, instead, that a zygote is a “person,” and in that one word, it offers a familiar narrative of “human rights” to ground the legal rule that it establishes.

To make a fully informed decision about what one thinks of the abortion issue, however, it is useful to remain aware that the word “person” can effectively distract us from three sorts of facts that are truly pertinent to the abortion question:  facts about the developing embryo and fetus at various stages; facts about what happens to a woman’s body when she is pregnant; and facts about what occurs when the government legally requires women to remain pregnant and give birth against their will.

Sherry F. ColbSherry F. Colb, a Justia columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her most recent book, Mind If I Order the Cheeseburger?: And Other Questions People Ask Vegans, is currently available on Amazon.
Print this page
  • Pingback: DOMA Defense: Taxpayers on the Hook for $1.5 Million to Defend Law Barring Same-Sex Marriage; Misrepresentations, Regulations, and Jobs; Obama Blasts Cantor for Denying Vote on Jobs Bill; and more… » DailyQueerNews.com

  • Gary0

    One Kind of Debate:  An Empirical Disagreement About Embryonic Development.Empirical debate, is NOT of our Constitution as our founding Fathers developed.  The right to life, liberty etc; right to Life, settles this One kind of Debate. 
    A Second Kind of Debate:  A Disagreement About Moral Entitlement We could agree, for example, that an embryo is unable to have a subjective experience of suffering or joy.  This statement is false based on 1st hand testimony of the ‘person’,  who’s right to life, is of Constitutional protection.  ‘I’ testify that life at conception ‘is’.  The experience of suffering or joy, ‘is’.  The moment of conception, brings forth the new ‘person’, to ‘life’.  The joys, fears, of the two, that created this ‘life’, ‘is’.  My joy, and or sorrow was known at conception!   Yes at conception!  I know testify, under my life, as provided by “God”, to the comment you make, that at conception, the experience of suffering and joy, is both known, and lived through.  Including not only death via abortion, but death, as the thought[s], of the two parents; and the ‘sense’ of death, harm, fear, from those around the developing child; no matter at what stage of physical development!  Examples of this fact, is noted in the Bible, when the child, St. John the Baptist, as child, jumped with joy, when the Holy Mother Mary, was in the presence, of child; ‘our Lord’, to St. John, the growing child.  As such, Abortion; constitutes ‘Murder’, as described under the ‘Constitution’. 

    • Bobby Kearan

      You miss one, very important constitutional fact.  Your religion is constitutionally prohibited from controlling my life.

  • Anonymous

    Just saying by reference, when I watch the In Memoriam part of This Week on Sunday mornings, I feel sorrow at every war death, but the feeling is deeper when the soldier is older.  It is nice that we value innocence but it should not be valued more than a life lived.  Wisdom and knowledge are far more valuable than innocence.  Were I ever in the untenable position of having to choose between the life of an adult woman over the life of her unborn child, I’d move for the woman every time.

    It also makes no sense to force a fetus into a life that will very likely only result in harm to it.  For instance, unwanted pregnancies for reasons of alcoholism, drug addiction, rape, incest, disease, genetics (oh, I can hear the screams of eugenics as I write, but the decision lies solely with the mother-to-be) and other well-known horrors for an infant to be forced to endure.

    And for me, the argument that a person has a right to control his or her own body in every way, stands strong among what I believe to be inalienable human rights.

  • CA_lawyer

    It is interesting that nobody has mentioned how this Initiative, if passed might impact women who miscarry.  Will the law require that when a miscarriage occurs, that there be an inquest to determine the “cause of death?”  Will women who fail to exercise reasonable care for their unborn babies be subject to prosecution for criminal negligence, involuntary manslaughter, or child abuse?  Will the physicians who attend these women or who deliver stillborn babies be subject to wrongful death suits?  Currently, the law in some states already permits a person who kills a pregnant woman to be tried for two murders, the mother and the unborn child. 

    • Clydecbd

      A miscarriage is a naturally occurring and frequently spontaneous event.   It is a thing that can occur under the best circumstances and I am reasonably certain no one would drag a woman into a legal situation to prove or disprove their contribution to it.

      • Bobby Kearan

        Tell that to the hundreds of women in the United State who have been dragged into a legal situation to prove or disprove their contribution to a miscarriage – or even the woman who was arrested for falling down stairs while pregnant!

  • Clydecbd

    Why not just answer the question? So many people for a multitude of reasons are obviously trying to detract from the question. The question is, “Does a person exist at the moment of conception?” The answer should be a yes or no. After that let the debates begin! 

    • Bobby Kearan

      No.

      Still, “personhood” seeks to create a person up to two weeks before conception occurs – at the moment of fertilization.

 

Access this column at http://j.st/ZYHB