The Beauty of the Personhood Amendment

Finally, somebody did it.

Instead of diddling around the margins of the abortion question, playing elaborate political chess with parental notifications and ultrasound requirements and waiting periods, the Sovereign State of Mississippi has placed on the ballot for November 8 an amendment to the state constitution that would simply clarify:

The term “person” or “persons” shall include every human being from the moment of fertilization, cloning or the functional equivalent thereof.

I humbly submit to you that this is exactly what the pro-life movement needs to be doing…needed to be doing all along.

It's Philosophically Sound

Perhaps the greatest beauty of the Personhood Amendment is that it does nothing more than to state simply and succinctly the core truth—the beautiful, life-affirming truth—of the pro-life movement: A human being is a person even before she or he is born. Even Horton the Elephant can understand this simple, timeless truth.

Detractors really don't know how to respond to the profundity and simplicity of this amendment. The best that they can do is to refuse to enter the conversation about whether your baby was a person while she was in your womb. I've read scores of articles and heard or watched dozens of interviews and panel discussions about the Personhood Amendment, and I've yet to come across a single one that ever featured any serious attempt by the pro-abortion crowd to assert that an unborn baby is not a person and to offer any biological argument as to why that might be the case. They just don't have an answer.

Consider, for example, today's article in the New York Times entitled, "Mississippi's Ambiguous Personhood Amendment." Before delving at all into the text of the article, let's consider the implication of the title. You just read the complete text of the amendment. Was "ambiguous" the word that came to mind when you read that simple sentence? Liberals never cease to amaze me; liberal lawyers all the more so. There is a class of people in our society who will defend socialist texts like the 907-page Obamacare act, containing gems like:

For years after 2014, if the Secretary of Health and Human Services determine it to be appropriate, the Secretary may incorporate participation in a Maintenance of Certification Program and successful completion of a qualified Maintenance of Certification Program practice assessment into the composite of measures of quality of care furnished pursuant to the physician fee schedule payment modifier, as described in section 1848(p)(2) of the Social Security Act (42 U.S.C. 1395w—4(p)(2)). [As added by section 10327(b)].

A sentence like that one doesn't strike these authors as ambiguous, or at the very least not as ambiguous enough to motivate them to pick up their pens, but the simple sentence given above—entirely unmistakeable in its meaning—merits an entire article in the New York Times to explain how "ambiguous" it really is. In fact, these lawyers are not satisfied to call this amendment merely ambiguous; it is, somehow in their minds, "profoundly ambiguous."

I submit to you that it is only after years of law school that you can see "profound ambiguity" in simple truths like those expressed in the Mississippi Personhood Amendment. Profound? Yes. Profoundly ambiguous? Not at all. That's what they find so scary about it.

Moving beyond the title, what are the specific arguments advanced in this article? First, the authors suggest that we can't declare human beings to be persons from fertilization onward because we don't really know what fertilization is (my high-school science teacher is in BIG trouble the next time I see him). Fertilization, they say, is actually a gradual process rather than an instantaneous occurrence. For a more rigorous treatment of this question, see Phillip G. Peters Jr., "The Ambiguous Meaning of Human Conception", in the UC Davis Law Review. The case being made here is that the law is ambiguous because the phrase "the moment of fertilization" is ambiguous.

I find this argument to be disingenuous for several reasons.

1. It's a bad argument because, until language achieves perfection, there will ALWAYS be some small level of ambiguity in EVERY law. The question is not whether some cloistered activist legal-academic team can find a way to argue ambiguity; they question is whether this law is more ambiguous than other laws—than the legal status quo that it replaces.

   Fertilization is a process? I submit to you that BIRTH IS A PROCESS. Why are our authors not bothered by using the ambiguous process of birth as a demarcation for personhood when they are so troubled by the use of the "ambiguous" process of fertilization?

2. It's a bad argument because, if you want to get downright picky about it, every natural phenomenon is a process rather than a momentary event. You turned on your light switch? What ensued was a process, not a momentary event. You ran a stop sign? Process. You murdered your boss? Process. You refused to pay your taxes? Process.

   If we can't mark moments in time that are actually, in arcane technical analysis, processes in some way or another and then base laws upon those "momentary" occurrences, then we can't have laws at all.

3. It's a bad argument because we have a great system for resolving minor ambiguities in law—our court system. The First Amendment to the Constitution of the United States of America was, in some sense, ambiguous. By that, I mean to say that we've had to have a lot of court cases, many of which have gone all the way to the Supreme Court, that have had to define the precise meaning of the First Amendment as applied to actual cases. Would Cohen and Will throw out every "ambiguous" amendment? Goodbye, Bill of Rights.

   And perhaps this is the worst indictment of this terrible article: Law professors should know better…have to know better, really. They TEACH their students every semester about the beauty of this legal system that works out over time the unavoidable ambiguities of legal language. Real ambiguity is something that law professors love. Ambiguity is to a constitutional lawyer what water is to a fish.

   Indeed, the ambiguities of the process of "birth" have been worked out in case law. A person has been born and is a person (at least in some jurisdictions) when she or he is completely outside of the mother's body and has taken a first breath. That definition isn't in the Fourteenth Amendment, but these authors aren't decrying the Fourteenth Amendment as "profoundly ambiguous." We worked out the details along the way. That's the way our legal system works. Law professors ought to know that.

4. Finally, this first argument is a bad argument because alignment with truth and justice is a higher purpose for law than is the elimination of ambiguity. This much is clear in science: Attaching personhood to the first drawing of breath outside the womb is dramatically too late. Human beings are human beings LONG before then. Even if birth were less of a process—less ambiguous—than fertilization (and I've shown pretty conclusively that it is not), an ambiguously just and true law is superior to an unambiguously unjust and false law.

   The authors don't want to interact with that idea. They devote not even a sentence to address the question of whether these are living human beings deserving of basic constitutional protections due to persons. That's the key underlying question, but they must avoid it at all costs.

Second, the article argues that the implications of this amendment are not entirely known beforehand.

OK. Again, I submit that this is true about EVERY amendment and every law. Do Cohen and Will believe that the Founding Fathers anticipated a ban on school prayer when they adopted the First Amendment? The federal government wasn't involved in education at all in 1791. Do they believe that the Fourteenth Amendment was written with a right to abortion in mind? What doublespeak! Defenders of Roe are all about celebrating the opportunity for unelected, unaccountable jurists to create new "implications" of law that were entirely unanticipated by the authors of legal prose.

What frightens these people about the Mississippi Personhood Amendment are the KNOWN implications of the amendment, not the mysterious ones. The amendment doesn't necessarily make abortion illegal in Mississippi. It is legal to kill those who are legal persons, in some circumstances. The law simply has to spell out the legal reasons why it is not a denial of due process to kill a legal person. If the amendment passes, pro-abortion hacks will set about immediately to craft laws that spell out when it is legally justifiable to murder an unborn person.

But it will be the lasting impact of this amendment that in order to do so, they will have to tell the truth: They will have to acknowledge that they are murdering an unborn person, for whatever reason. THAT is the major implication of this amendment. And with their second argument, Cohen and Will rested their case.

By the way, if you are a Southern Baptist in Mississippi, this anti-Personhood-Amendment article that we've been discussing is an example of your Cooperative Program dollars at work: Co-author Jonathan F. Will is a professor at CP-supported Mississippi College.

It's Pragmatically Sensible

This amendment is not a new idea. Elements within the pro-life movement have resisted ideas like this one for years, endorsing instead a strategy of incremental changes to existing abortion law (waiting periods, parental notification, mandatory ultrasounds, mandatory counseling, etc.). Their rationale has been that it is not pragmatically sensible to try something as "radical" as constitutional amendments defining unborn human beings as legal persons.

This fact reveals the lack of common-sense wisdom that plagues so much "political science" these days.

Here are the pragmatic realities: Any pro-life legislation, no matter how incremental, is going to face the unrestrained wrath and campaign prowess of the pro-abortion lobby in the USA. No matter how small the action, opponents are going to brand every action as "just one step toward the ultimate goal of reversing Roe." And they're right! And people know it!

The result is that the pro-life movement looks disingenuous. We face no weaker an opposition force for these piecemeal attempts, and on those occasions when we win, we gain very little, if anything at all.

This amendment is a stroke of political genius. Simple truths are the easiest ones to sell, and this amendment embodies a very simple truth. It is reminiscent of the efforts to extend civil rights to African Americans and gains strength from that fact. It places opponents in the unenviable position of having to argue which human beings aren't really persons in order to mount any strong campaign against the amendment.

It's Politically Achievable

Because this amendment simply states a profound truth, it is inspirational. People who love life and love babies can rally around this amendment, because it so beautifully states something that we know to be true and about which we are passionate. I would support a "parental notification" law, but I wouldn't fall in love with it. This amendment is beautiful and life-affirming. I have fallen in love with it.

So have the people of Mississippi. Even DEMOCRAT officials in Mississippi are lining up in favor of this amendment. When that happens, you know that the politics are on your side.

It's About Time

I think a lot of people have dismally concluded that abortion, like the poor, we will always have with us. The pro-life movement has been very successful since 1980 in getting presidents elected. Saving babies from the abortionist's murdering grasp? Not so much.

What a breath of fresh air to see bold new steps like Personhood Mississippi! What a beautiful thing! Who will now bring it to Texas, so I can vote for it?