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If Mississippi’s Initiative 26 (the “personhood initiative” or “PI”) passes next Tuesday, its state constitution will be amended to read [1] : “Person defined. “The term ‘person’ or ‘persons’ shall include every human being from the moment of fertilization, cloning or the functional equivalent thereof.”

The New York Times has found this so threatening that it’s dedicated three pieces (1 [2] , 2 [3] , 3 [4] ) in the last 8 days to persuading people against it.  The Washington Post’s eager atheist Susan Jacoby tells us [5] that the “pernicious” initiative is based on “religious extremism and ignorance of human anatomy and biology”.  The LA Times quotes [6] a Mississippi law professor—with entirely too much time on his hands—as saying that if the initiative passes, unsuspecting women who consume alcohol or engage in “a strenuous physical competition” may be exposed to criminal prosecution.  Other nervous journalists tell us that the law would force doctors to let women die on their floors, prohibit the use of the morning after pill “in all instances”, outlaw IUDs, shut down IVF clinics, permit religious interference with the female reproductive system, and require the prosecution of women who miscarry.  Pro-aborts haven’t gotten this worked up since Pennsylvania Governor Robert Casey urged the High Court in 1992 to overturn Roe v. Wade as having been wrongly decided.

The favorite talking point of pro-choicers is that, because the initiative is so extreme, it has even “split the anti-abortion movement [5] .”  There’s a modicum of truth to this.  But the “split” has nothing to do with the intent of the initiative to secure legal protections for all human beings from fertilization.  The split is over strategy.  Although Mississippi’s largest Christian denomination, the Mississippi Baptist Convention [7]  backs the PI, as well as the American Family Association, the Family Research Council, and influential Republican pundits such as former Arkansas governor, Mike Huckabee, the initiative is not supported by two of the most influential pro-life voices in the U.S., the United States Conference of Catholic Bishops (USCCB) and National Right to Life (NRL). 

Neither group is a newcomer to the concept of a personhood amendment.  And both have long supported federal initiatives to amend the U.S. Constitution to define nascent human life as constitutionally protected persons.  But over the past five years, Catholic bishops and the NRL have consistently discouraged similar state initiatives.  In 2007 Georgia Right to Life introduced in the state legislature a Human Life Amendment (HR 536), which the Georgia Catholic Conference and National Right to Life refused to support. 

They likewise refused to support two ballot initiatives in Colorado aimed at constitutionally defining preborn human beings as persons.  Both measures failed miserably (in 2008, by an enormous percentage margin of 73-27, and in 2010, by a 70-30 margin).  But when it comes to social issues, Mississippi and Colorado may as well be separate countries.  (Remember, Colorado was the first state to legalize abortion in 1967 under limited circumstances.)  Both supporters and opponents of Mississippi’s PI believe that the proposal is likely to pass.

The opposition of U.S. bishops stems almost exclusively from the judgment that if states such as Colorado or Mississippi approve a personhood amendment, the success will be a Pyrrhic victory (winning a battle at the state level at the cost of losing the war at the federal).  The U.S. Constitution guarantees access to abortion via the so-called right to privacy.  If preborn human beings are guaranteed constitutional protection in Mississippi, most abortions there will be prohibited, setting up a challenge between the state and federal constitutions.  The amendment immediately will be challenged in the state or federal courts and will be ruled unconstitutional.  Pro-lifer backers will then petition the U.S. Supreme Court for a “writ of certiorari” (will ask the high court to review the lower court’s decision) and either “cert will be denied” (the Supreme Court will refuse to review the case), or if it agrees to hear the case, given its ideological make-up, will most likely rule against it.  By reaffirming Roe, the last state of affairs will be worse than the first.

The reasoning is plausible but not iron tight.  An appeal could take several years.  Can we be sure today what the Supreme Court will look like in several years?  Do we know that juridically answering Roe’s unsettled but all-important question of the status of the preborn will not pass constitutional muster?  Why?  Because of the indirect implications of such an answer for abortion ‘rights’?  Yes, maybe.  But the state also has an interest in settling the question of the status of the preborn; and Roe doesn’t answer the question, so Mississippi’s PI does not directly challenge Roe.  And gobs of facts in developmental biology are accessible today that weren’t when Blackmun wrote his infamously evasive words on personhood. 

For five years Catholic bishops have gone public in opposition to these initiatives.  How many more years will they continue?  If Obama gets re-elected and appoints even one more pro-Roe justice, will they become permanent opponents of state initiatives to extend constitutional protection to the unborn?  Hard-headed pragmatism is sometimes a justifiable way for Christian shepherds to proceed, but sometimes it’s not, especially if doing so offers a confusing witness to values that stand at the core of the Gospel.   At very least, testifying to a maligned truth always has some value, such as the truth of the personhood of human beings from fertilization.

But I believe the possibility of scandal needs to be seriously considered here.  Scandal is defined as leading another to commit serious sin.  This, of course, can be done intentionally.  But it also can be done unintentionally, as when one adopts a course of action that gives an ambiguous message on some gravely important matter.  For example, a priest frequents a pub with his sister (who happens to be a beautiful blond); somebody contemplating becoming a Catholic is having a beer on his way home from work and sees Father and his sister chatting cozily in the neighboring booth, doesn’t know they’re siblings, wrongly interprets the ambiguous message, and decides "ah, the Catholic Church is full of hypocrites", and stops his pursuit of full communion.  The priest would be culpable for wrongdoing for not foreseeing that his confusing example (although arising from an act that was in itself innocent) might wrongly but understandably be interpreted to the spiritual harm of others.

Catholics and non-Catholic alike in Georgia, Colorado, and Mississippi have expressed serious misgivings about the Catholic bishops’ approach to the question of personhood amendments in their states.  I know anecdotally from my own experience in Colorado that at least some good Catholics have lost trust in their bishops over the issue.  Some Protestant pro-life brothers and sisters have felt alienated.  And enemies of the Church, both within and without, have exploited the confusing example in criticisms against the Church.

Since the pragmatic argument is far from certain, and since opposing PIs risks scandal, I recommend that our bishops and other pro-life leaders, even those with misgivings, offer at least qualified support for Mississippi’s initiative and others like it; and urge Catholics and all citizens, after serious consideration of the issues at stake, to vote in the way they judge to be most effective in protecting the lives of human persons from fertilization to natural death.

 (c) Culture of Life Foundation 2011.  Reproduction granted with attribution required.