"Whether one supports abortion rights or not, there are serious issues" with Mississippi's proposed "personhood" amendment -- "not because of the principles it seeks to represent, but because, as a legal matter, it is profoundly ambiguous," Glenn Cohen, an assistant law professor at Harvard University, and Jonathan Will, an assistant law professor at Mississippi College, write in a New York Times opinion piece. The amendment, set for a Nov. 8 vote, asks Mississippi residents if the state constitution should be changed to define a person as "every human being from the moment of fertilization, cloning or the functional equivalent thereof."
From a legal standpoint, one problem is that it is unclear what "fertilization" means in the context of the amendment, Cohen and Will write. "As embryologists recognize, fertilization is a process, a continuum, rather than a fixed point," they add. According to Cohen and Will, the term "could mean at least four different things: penetration of the egg by a sperm, assembly of the new embryonic genome, successful activation of that genome and implantation of the embryo in the uterus," a step that does not occur until "approximately two weeks after insemination." They continue, "Thus, on some reasonable readings of the amendment, certain forms of birth control, stem cell derivation and the destruction of embryos created through in vitro fertilization would seem impermissible, while on other equally reasonable readings they are not."
Another issue is that it is unclear if the amendment would be "'self-executing' -- that is, effectuate a change to Mississippi law on its own" -- or if it would "require enabling legislation to set that change in motion," Cohen and Will write. They add, "Because of this uncertainty, voters considering this amendment cannot tell what actions would and would not immediately be subject to prosecutorial investigation were the amendment to pass."
Cohen and Will also caution that abortion-rights opponents might find that the amendment "covers more than they bargained for, including some forms of in vitro fertilization and birth control." The amendment could be a "bad vehicle" for reversing Roe v. Wade, the authors write, noting, "Courts frequently read ambiguous language as a strategy to avoid raising serious constitution questions." Cohen and Will write, "By endorsing a ballot initiative that is deeply ambiguous, pro-life constituencies could be inviting courts to read the amendment in a way that sidesteps the very constitutional question they want to force."
Cohen and Will conclude, "Mississippi voters, whatever their views on abortion, deserve an amendment that is clear on its face. This is not such an amendment" (Cohen/Will, New York Times, 10/31).