A Mississippi ballot initiative that would define a fertilized egg as a person could ultimately have far-reaching federal implications--something that many antiabortion activists fervently hope for and advocates for abortion rights fear.
But it could have consequences that even many abortion opponents might not support.
Many federal programs and laws include the coverage of contraception and other women’s health services that could be affected by the so-called personhood law in Mississippi, whether through Medicaid, family-planning grants, or even the 2010 health care reform law.
“The question [of what this initiative will do] really raises what the problem is here: that the consequences of this ballot measure are infinite and unknown,” Suzanne Novak, a senior staff attorney at the Center for Reproductive Rights, said in an interview.
Novak said that if the ballot initiative passes, her organization and others will challenge its constitutionality in court.
“It’s just hard to know what happens,” she said. “It’s going to create a mess if this passes. That’s why we’re going to go into court if it does.”
The ballot initiative could contradict federal statute when it comes to the landmark health reform law, particularly what preventive services insurance companies are required to cover, free of charge, for women.
The health care law mandates that insurers cover a wide range of preventive services for women without any fees, including contraceptives that might interfere with a fertilized egg that has not implanted on the uterine wall, such as intrauterine devices or the morning-after pill.
If Mississippi passes the personhood initiative on Tuesday, women’s health advocates argue that those contraceptives could potentially be considered murder, opening the door to numerous legal battles between the state and the federal government.
Other federal programs would not be as clearly affected. States have wide discretion to determine what services are offered under Medicaid, and the federal government would not likely not intervene to force Mississippi to cover any specific types of contraception.
But Medicaid patients are supposed to have access to the array of providers that people with private insurance have. If doctors and hospitals in Mississippi stop offering abortions or certain contraceptives in light of passage, that could raise additional legal challenges.
“It is unclear how federal services play into that if you don’t have people offering that care,” Novak said.
The same is true for Title X family-planning grantees, which must offer a “broad range of acceptable and effective methods of contraception” but which are allowed to determine the specifics of what that means. According to the liberal Guttmacher Institute, 61,000 women in Mississippi obtained contraceptive care in 2008 from clinics receiving Title X funds.
The line is less clear when it comes to covering medical procedures that might be necessary to save a woman’s life. For example, an ectopic pregnancy—when the fertilized egg implants in the fallopian tube—can kill a pregnant woman if the egg is not removed. Whether that procedure would be allowed in Mississippi should the ballot initiative pass is under question.
“You have to offer full array of services. You are held to a standard of ‘appropriate medical care,’ ” if you receive federal funds, Sara Rosenbaum, a law professor and the chairwoman of the Department of Health Policy at George Washington University, said in an interview.
Beyond federal health programs, the personhood initiative could end up affecting everything from tax law, such as whether a pregnant woman can claim her unborn fetus as a dependent, to fertility clinics that have unused fertilized eggs.
Rep. Duncan D. Hunter, R-Calif., and Sen. Roger Wicker, R-Miss., both have bills pending in Congress that would define life as beginning at fertilization. Hunter's bill has 92 co-sponsors, including Rep. Michele Bachmann, R-Minn.
The Mississippi ballot initiative is only two lines long, so its consequences may not be immediately obvious. “It might depend on how Mississippi implements it,” said Susan Appleton of the Washington University School of Law.
Appleton said there is a long legal tradition of not necessarily placing one person’s life over another, which could throw another legal wrench into this issue.
“We don’t always make preserving another person’s life paramount,” she said. “For example, self-defense is allowed, or we don’t have laws requiring parents to give up kidneys for their kids. … These arguments have been around for a long time.”
Whatever the ultimate impact of the ballot initiative, women’s health advocates see the effort as a further attempt to get the Supreme Court to review abortion rights.
“I think that’s the intent,” Judy Waxman of the National Women’s Law Center said in an interview. “It’s another attempt to be getting at this issue.”