By Jonathan F. Will
[Cross-posted at The Conversation]
Citizens of three states had the opportunity to vote on measures considered by many to be adverse to abortion rights during the November 2014 election cycle. While the personhood efforts in Colorado and North Dakota failed, the Tennessee electorate approved an amendment making clear that their state constitution does not protect a right to abortion, and expressly authorizing the state legislature to regulate abortion services.
Unlike the amendment that passed in Tennessee, the state constitutional amendments proposed in Colorado and North Dakota said nothing explicitly about abortion. Instead, the measures sought to extend the protections associated with a “right to life” to human beings at all stages of development. Of course, by extending this aspect of legal personhood to the preborn, abortion necessarily becomes problematic. But these types of personhood measures have failed in every state to attempt them, including Mississippi, which is considered by many to be the most conservative (and anti-abortion rights) state in the country. So why are personhood measures failing even while the Tennessee amendment passed?
The short answer is that personhood measures implicate far more than abortion. By common medical understanding, abortion involves the termination of a pregnancy, which exists when the embryo implants in the uterine wall some two weeks after the sperm meets the egg in the fallopian tube. But personhood measures seek to attach legal personhood before a pregnancy exists; perhaps as soon as the sperm penetrates the egg. Therefore, the loss of even single-celled zygotes potentially becomes problematic, implicating certain forms of contraception, infertility treatments such as in vitro fertilization (IVF), and so forth.
The voting populace often has strong views about abortion, and the result in Tennessee suggests that at least in some states the majority of voters are in favor of greater restrictions on abortion. But there seems to be far less support for potential restrictions on contraception and/or IVF. The more interesting question, and one that does not receive much public discussion, is why a voter would be against abortion rights (presumably because of the loss of human life), but in favor of IVF? Is there something meaningfully different about the developing embryo immediately before implantation versus immediately after? Many personhood supporters would say no. They believe that legal personhood should begin at fertilization. But during debates about personhood measures, certain supporters suggest that the proposed constitutional amendments would not implicate IVF. This is curious given that thousands of these pre-embryonic persons are lost each year through failed implantation or otherwise.
My current work seeks to bridge this gap, or at the very least, to create a space in which meaningful discussion can be held.
