Legal Argument: Ripple Effects of Amendment 26

One criticism of Amendment 26 is that there will be both a legal and medical ripple effect.  An example of a possible legal issue is that by requiring that doctors provide prenatal care to a woman with a non-viable pregnancy.  Section 41-107-5 of the Mississippi Code states that:

(1)  Rights of Conscience. A health-care provider has the right not to participate, and no health-care provider shall be required to participate in a health-care service that violates his or her conscience. However, this subsection does not allow a health-care provider to refuse to participate in a health-care service regarding a patient because of the patient's race, color, national origin, ethnicity, sex, religion, creed or sexual orientation.

Forcing a health care provider to provide care that is against his or her own professional advice violates his or her conscious. 

Side note the rights of conscious of health-care providers was established to give physicians the right to elect to not perform abortions and other treatments.  However, the second clause is contradictory.  It reads:

(2)  Immunity from Liability. No health-care provider shall be civilly, criminally, or administratively liable for declining to participate in a health-care service that violates his or her conscience. However, this subsection does not exempt a health-care provider from liability for refusing to participate in a health-care service regarding a patient because of the patient's race, color, national origin, ethnicity, sex, religion, creed or sexual orientation.

You can’t refuse to perform an abortion on a man.

But back to Personhood

The third clause in the Health Provider’s Right to consciousness includes the word person in it. 

(as you read this and my argument, keep in mind that the enforcement of the law as well as the interpretation of the law is based on the law itself not its intent.)

(3)  Discrimination. It shall be unlawful for any person, health-care provider, health-care institution, public or private institution, public official, or any board which certifies competency in medical specialties to discriminate against any health-care provider in any manner based on his or her declining to participate in a health-care service that violates his or her conscience. For purposes of this chapter, discrimination includes, but is not limited to: termination, transfer, refusal of staff privileges, refusal of board certification, adverse administrative action, demotion, loss of career specialty, reassignment to a different shift, reduction of wages or benefits, refusal to award any grant, contract, or other program, refusal to provide residency training opportunities, or any other penalty, disciplinary or retaliatory action.

Let’s take some time to unpack this. 

a.      . It shall be unlawful for any person, health-care provider, health-care institution, public or private institution, public official, or any board which certifies competency in medical specialties to discriminate against any health-care provider in any manner based on his or her declining to participate in a health-care service that violates his or her conscience

It is against the law for any person (zygote), provider, institution, or official to discriminate against any health care provider based on his or her declining to participate in a health care service that violates his or her conscience.  In other words, doctors shall not be forced to provide in a health care service that violates his or her conscience.  If caring for a fetus and pregnant mother throughout a non-viable pregnancy violates the provider’s conscious he does not have to provide that treatment.  Electing to perform life-saving measures is in itself doctors’ refusal to participate in the care of an unviable fetus and it pregnant mother; and now that this zygote is a person; even it may not discriminate against the job.

b.     For purposes of this chapter, discrimination includes, but is not limited to: termination, transfer, refusal of staff privileges, refusal of board certification, adverse administrative action, demotion, loss of career specialty, reassignment to a different shift, reduction of wages or benefits, refusal to award any grant, contract, or other program, refusal to provide residency training opportunities, or any other penalty, disciplinary or retaliatory action.

Discrimination includes penalty, disciplinary, or retaliatory action.  Personhood would subject providers to penalty and disciplinary actions, which is currently illegal.  You cannot punish a doctor for refusing to not provide life saving measures.  Likewise you may not sanction a provider for his or her refusal to provide prenatal care for the zygote and pregnant woman.

This is merely one of the possible legal ramifications of the passage of the Personhood Amendment.  As others have pointed out, the word person appears in the Mississippi Code of 1972 over 9000 times.  In addition to this, there are currently laws in the code that protect mother, child, and fetus.  Scholars will write and debate the outcomes of the amendment’s passage.  It will become a body of knowledge that people write dissertations and publications necessary to obtain tenure.  Lawyers build careers on defending or defeating the degree to which this new definition authorizes the sanctioning of medical providers for various services.  And like public health, public education, and mass incarceration a community will experience a disproportionate amount of harm, powerless, and at times voiceless.  Most importantly the this community will remain invisible as the policy builders, academics, and lawyers wage their debates in the north, south, and northeast of the state, both groups contending that they are champions for the rights of these people.  One group saying these people account for more abortions than any other group (although this group experienced the highest drop in abortions as well.)  The other group is saying these women have a right to choose to terminate their pregnancy; however, neither group has the forethought (or probably the desire) to take the time to go to these women and ask them how they really feel.  Well as one of these women my answer is “abortion shouldn’t be illegal; it should be unnecessary”.

Defining Personhood

Defining personhood is the latest Conservative effort to thwart women’s right to choose.  Sponsored by Les Riley, the amendment redefines personhood as follows:
"The term 'person' or 'persons' shall include every human being from the moment of fertilization, cloning or the functional equivalent thereof."
The group linked to this amendment is New Albany based,  Personhood Mississippi.  The primary opponent of this group is Mississippians for Healthy Families.  The amendment has been formally denounced by the Mississippi Nurses’ Association.  Their statement can be found here. http://www.votenoon26.org/news/mississippi-nurses-association
Many arguments against the amendment focus on the amendment’s potential ability to inhibit or limit life saving measures and effective family planning.  Other arguments focus on pregnancy terminations due to rape and incest. 
1. Amendment 26 is a job killer, not a phantom job killer like raising the minimum wage, but an actual job killer.  The effects of prohibiting the types of services affected by this semantic warfare will effect every women’s health facility in the state.  Facilities may lose funding.  The dearth of medical providers may intensify as they leave Mississippi for other states.  Other health professionals may be prompted to leave because of closing facilities. In some parts of Mississippi people are forced to drive miles for basic care and travel even further for specialized care.  With the adoption of this amendment people may be forced to travel outside the state  just to receive care.  Considering the poverty that persistently plagues Mississippi this will intensify health disparities among various Mississippians.  Non-professional medical staff with limited resources may be forced into unemployment or under-employment due to decreased demand for services and subsequent facility closings.   Mississippi, according to the Census has experienced a decrease in the median income.  Thee population in some regions continues to decrease.  Is increasing unemployment to impose one group’s morals on an entire state responsible during a recession?
2. From and epidemiological perspective it is irresponsible, reprehensible, and just plain wrong…more so than abstinence only education.  By inhibiting family planning services this will have a profound on public health facilities that the health of EVERY Mississippian depends on.  Many people in this state have very limited access to healthcare as it is.  This amendment has the potential to drive small medical establish out of business.  Many people in their distaste for family planning and reproductive health care fail to realize its connection with the control of infectious disease.  Early detection, prevention, and treatment often coincide with family planning.  Many people have a false sense of security when it comes to this because the believe they don’t have sufficient access to people with these infectious maladies.  But two diseases in particular, tuberculosis and hepatitis, are contagious and don’t require the same level of contact as other infectious diseases associated with family planning.  Considering the people who care for us, our children, the elderly, as well as the people who prepare and serve our food.  If infected with tuberculosis or hepatitis and this infection is undiagnosed or treated they have the potential to spread these diseases to unknowing Mississippians.
3. It is an attack on science.  Here’s a new law for you.  Before you are allowed to write such an amendment you should be required to demonstrate better-than-adequate knowledge of female reproductive medicine, genetics, cloning, and stem cell research. I didn't think I needed to provide an in-depth explanation of pregnancy until I read the paper today.
In many attempts at the opposing of one group’s values upon others religion is touted as the justification to ignore facts.  Faith trumps facts, even if you are arguing with a person who’s only faith is in facts. 
The word personhood is also connected to Jesus.  Merriam Webster dictionary defines it as:
b : the unitary personality of Christ that unites the divine and human natures
4.  Jesus was a carpenter, not a physician, not a midwife, not a nurse, not a geneticist; therefore he had no opinion on Stem Cell Research.  However if he did do you think he would have said, "fuck the terminally ill”?
5.  Give me a chance.  I am a person.  This is one of the many slogans on banners decorating the Personhood Mississippi webpage. If you are a black person, you have twice the likelihood of dying before one year old (MSDH, 2010).  If you are a black male person you have a more than 30 percent chance of being incarcerated and a better chance of bring incarcerated than attending college (Pettit and Western, 2040) See also lifetime likelihood of incarceration.  If you are a black female person you constitute 50 percent of all new HIV cases, the lion’s share of which has been attributed to the mass incarceration of African American Males (Johnson and Raphael, 2009).  If you are a Delta person you will be born into impoverished communities where any attempt to improve your well being via public policy will be voted against by the very composers and advocates of this very amendment.
List of people who endorse Personhood Mississippi can be found here: http://personhoodmississippi.com/endorsements.aspx
The reason this blog is titled Shut The Fuck Up…Educated People are Talking is because despite the fact that there is a well educated medical community that warns against the passage of such an amendment, people vehemently and vocally support it.  Now the cynic in me suspects that this is merely a rouse to attract as many conservatives to the polls as possible to increase votes for Phil Bryant.  However, when I read and hear the support for this, its possible that people want this.  Similar to the fight over the HPV vaccine and the subsequent rebranding of it as the cervical cancer vaccine, people’s discomfort about sex, as well as their need to police the sex other people are having stands to jeopardize the health of an entire population.  If only someone had the cojones to say “Shut the fuck up! Educated people are talking.”