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.