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”.