On the Personhood Movement

I've been reading a bit about an attempt in Mississippi -- defeated in the recent election -- to use the law to establish that the beginning of human personhood comes at the joining of sperm and egg.  This is the point of fertilization, which either is or is not the moment of conception depending on whether you consider conception to be incomplete until the zygote is successfully implanted.  We will leave that debate aside for the moment.

Ms. Amanda Marcotte is, of course, thrilled by the defeat of the measure; here is her analysis of why it was defeated.
The other important takeaway from this is that there's a genuine disconnect between the anti-choice movement and people who identify as "pro-life" but aren't in the movement. Anti-choice activists look at polling data showing that a slight majority of Americans claim to be "pro-life" and declare victory, but what those polls really reflect is not people's genuine opinions on reproductive rights so much as the power of the anti-choice movement to cow people into cursory agreements with them out of fear of being seen as impious. In other words, saying you're "pro-life" is more about marking you as a member of a tribe, pledging fealty to your faith or to your identity as a "conservative," for a lot of people. If you dig into the Gallup numbers, in fact, it seems that on the abortion issue alone, around half of people who claim to be "pro-life" actually would like abortion services to be available in the cases they imagine that they or their loved ones could need them.
I had arrived at a different conclusion yesterday, which is this:  the problem with the "personhood" movement was that it draws the right ethical line, but the wrong legal one.  It is perfectly correct as a matter of ethics, and even of morality, to recognize that a fertilized egg is no longer merely an outgrowth of the father or the mother; it has an independent stature that arises from its now unique DNA.  This is indeed the point at which we should no longer think of it as we would the cells of one's hair or fingernails, in other words, which we can discard at will.  Disposing of this has a significantly different moral quality.

Nevertheless, the law cannot support the same standard.  It is very often the case that ethics and the law come apart, and even that they should come apart.  There are several reasons why it is a bad idea to make this a legal standard.

It would invest the police with the power, and perhaps the duty, to investigate early miscarriages of the type that remain extremely common to be sure there was no foul play.  This would be a mistake because it would create a burdensome and expensive new requirement for the police, which as taxpayers we should prefer to avoid; and because it would create an extremely intrusive power for the police, which we as citizens should prefer to avoid.

Since almost all such spontaneous miscarriages are natural, too, we cannot imagine it would do any good to investigate them even if we wished to pay these costs in money and liberty.  It would at that stage be very difficult to prove that the woman even knew she was pregnant, again raising the cost of any such investigations.

In other words, it just doesn't make sense as a legal standard.  It makes sense as a moral standard, but the law must be practical and enforceable, and any law must be balanced against the costs of enforcing it both in terms of wealth and freedom.  As a legal standard, this fails on all counts.


Anonymous said...

It goes further than you take it, because declaring the zygote a "person" does not address the question of a grant of power under our Constitution.

The Roe v. Wade decision pointed out that, once a grant of power is made to our government, there is no way to require a specific outcome of a decision made according to that power. To grant the power to intervene in the decision about an abortion inevitably grants the power to compel abortions.

The notion of "personhood" doesn't solve this problem. All that is required under our Constitution to kill a person is "due process," and we decide what is due process.

At the time the decision was published, I didn't know what to think about that problem. Certainly, many people loudly declared that a slaughter of the innocents by government could never occur here, particularly if the rights of the baby were recognized from conception.

But after that, it happened in China, and our current Obamacare is very easily adapted to rulemaking that could compel not only abortion, but euthanasia.

I am now very strongly of the opinion that the Supreme Court did us a great service, by forcing the decision to have an abortion (medical ability gives us the power-no way to withdraw that) to be a case-by-case decision by the persons most affected. It doesn't stop ALL abortions, but it does stop a wholesale slaughter of the innocents by government fiat.

The solution is not ethically pure, but in an imperfect world, it does put a stop to the greater evil.


Grim said...

That's an interesting reading, Valerie. It is true that the government used to mandate sterilization, in some cases -- there was a story about that in last weekend's Charlotte Observer, which I read while I was up in the Carolinas.

Is it true, though, that giving the power to prevent something mandates giving them the power to compel it? That seems like a strange claim: we often want the government to ban things like rape, without imagining that we are licensing the government to ever compel people to submit to being raped.

I would like to say that there is a natural law protection at work here, in which there are things that no government can do regardless of what powers have been granted to it. A government that transgresses these natural law limits is illegitimate, and may be overthrown with an easy conscience. Surely a government that read its delegated power to punish rape as a license to permit rape to go unpunished would be in the wrong: and one that used such license to compel rape would be manifestly worthy of revolt and overthrow. Positive law is not everything! Indeed, more and more I think it is very little.

Dad29 said...


Miscarriages are usually certified as such by the woman's OB/GYN. And miscarriages do not cause the physical damage to the birth canal which 'surgical' abortions do.

It's no surprise that Planned Barrenhood wrote the spin that they did--and that J&J joined. "Day After" birth control causes abortions, after all, and that would eliminate a number of potions from the marketplace--not to mention PP's most significant income-producer.

Grim said...

A miscarriage past a certain point may be, but I think very often early spontaneous miscarriages occur before any OB/GYN would have become involved. In fact, they may not even be recognized as pregnancies.

This is another reason that the standard is a difficult one legally, even if it makes sense morally to draw the line that way. As a practical matter, at the earliest moments the business is often being handled entirely by unconscious processes of which we may never become conscious.

E Hines said...

There's another problem with the miscarriage bit, one that is exacerbated in today's world of a negligent, wholly irresponsible citizenry that requires government to intervene in our diets, for instance, to mandate what we may eat and further to limit our free speech rights to hear advertisements of what we might wish to eat.

It's a short step from there for a government to investigate the woman's miscarriage--provably a miscarriage and not an abortion--as resulting from a negligent, and so actionable, life style, or from a proximate series of events she should have known would, or could, lead to a miscarriage.

In the end, I agree with Valerie's ethically impure solution from a different perspective: I trust the individuals, in the main, to behave ethically far more than I do any government.

Eric Hines

Assistant Village Idiot said...

I have many opinions on the larger issue, but will confine myself to the polling issues here. There are hardcore minority positions at both ends - some 20% who would allow any abortion and 20% who would allow none. In between there is a wide array (not a continuum, precisely) of beliefs, of folks who favor parental notification, or would forbid partial-birth or other late abortions, or who belief implantation/heartbeat/brainwave is the proper place to draw the line.

Thus, depending on how the question is phrased, each hardcore side can claim dominance, by pointing out that the other extreme is rejected by 80% of Americans. True, but misleading.

MikeD said...

I wish I had more faith in government so that I could say they would not investigate every sexually active woman who had a late period (to make certain it was not, in fact, an abortion), but such faith is always tempered by the knowledge that what is ridiculous today may not be tomorrow.

Twenty years ago, if you heard someone complaining that the government would make it illegal to cook with butter, you'd think they were some kind of kook. And yet, it's happened in NYC. Never underestimate the potential for evil in a faceless entity like government.