Personhood Amendments: Be Careful What You Wish For

In the last election, the voters of the State of Mississippi failed to pass a referendum that would have declared a fetus a “person” under the Mississippi Constitution. Specifically, Article III of the constitution of the state of Mississippi would have been amended by adding a new Section 33. Person defined. As used in this Article III of the state constitution, “The term ‘person’ or ‘persons’ shall include every human being from the moment of fertilization, cloning or the functional equivalent thereof.” Since the defeat of the Mississippi referendum, movements for a similar amendment have arisen in close to a dozen other states and Members of Congress have introduced three bills that would likewise declare a zygote to be a person from conception. Much of the debate about the defeated Mississippi amendment and the subsequent proposals involved the question of the impact of the laws on abortion and other reproductive issues such as birth control. However, one potential aspect of these proposals appears to have been ignored in the discussions; what other legal rights would attach to the zygote/fetus once “personhood” is conferred.

The American legal system has wrestled with the legal status of minors for more than a Century. At one time, parents and guardians had total control over the lives of the children under their charge. Parents, primarily fathers were entitled to the services of their children and could under certain circumstances kill their children with the approval of the government. Moreover, parents could “lease” their children out to others for the payment of debts, the generation of income, or merely because they could not afford to support and maintain their children. In essence, the law viewed children as property.

Beginning in the latter part of the 19th Century, reformation movements began to challenge the status and treatment of children and undermined the legal concept of children as property. Child labor laws, compulsory education laws, and eventually laws prohibiting child abuse and neglect created a new perception of children as entity worthy of protection from their parent, guardians and even employers. Children were no longer property, but were people. However, once the law determined that children were not the property of their parents or guardians, the question of what status children hold under the law has been a challenging proposition. Several cases developed a jurisprudence involving parents’ responsibilities related to the actions involving their children. In Meyers v. Nebraska (teaching a foreign language before 8th grade), Pierce v. Society of Sisters (children attending private school), Prince v. Massachusetts (child distributing religious literature at night), and West Virginia v. Barnette (children forced to say the pledge of allegiance), the U.S. Supreme Court examined the liberty interest of parents with barely a mention of the children’s legal status.

Starting in the mid-1960s (In Re Gault [juvenile justice case] and Tinker v. Des Moines Independent School District [free speech in public school]) and through 2007 (Morse v. Frederick [free speech outside of the school building]), the Court has declared children to be “persons” under the Constitution and wrestled with the implications of that declaration. One of the major challenges that the Court and legal scholars have faced is the oxymoron of children as legal persons. One of the significant underpinnings of our Constitutional jurisprudence regarding individual rights is the concept of choice. The Bill of Rights fundamentally protects individual freedom to make choices – the choice to speak publically, worship according to individual beliefs, the choice to remain silent when charged with a crime and to refuse to be searched without prior government authorization. At the same time, the law declares children to be incompetent to make choices because of their purported lack of capacity, particularly when they are very young, including the time when they cannot speak for themselves. How does a minor operate as a person whose choices in certain areas are constitutionally protected when the law says that the same minor lacks the capacity to make enforceable choices?

Taking this dilemma to the current movement to enact Personhood Amendments, the dilemma becomes even more challenging. The legal system has difficulty determining how to recognize, manifest and protect the choices of minors who can articulate a choice, or infants who possibly could demonstrate a choice. How could it determine how to recognize, manifest or protect the choice of a zygote or a fetus, as arguably be required if the status of personhood is granted under the Personhood Amendments? It would seem that even the strongest advocate for children’s rights would be at a loss in articulating a method to answer this question. It almost comes down to this. Children as persons under the Constitution – whether federal or state – are a legal oxymoron that present significant legal dilemmas. A zygote or fetus as a legal person is an oxymoron on steroids, defying solutions to a larger than life legal dilemma.


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