Mississippi Initiative 26: Personhood and the Criminalization of Intentional and Unintentional Acts of Pregnant Women (original) (raw)

2011, 81 Miss. L. J. Supra 55

The Mississippi Constitution protects the rights of life and liberty for all citizens. The intent of Initiative 26 is to criminalize abortion in the State of Mississippi by defining life—and rights of citizenship—as beginning at fertilization. Other possible outcomes include criminal charges against pregnant women accused of harming fetuses and increases in the prison population from newly incarcerated women. Such a trend is already observable in Alabama. If citizenship begins at the time of fertilization, then a tension develops between the unborn child’s right to life and the mother’s right to liberty. The question for the courts will be whether all citizens have equal rights, and how to balance these perhaps divergent and conflicting rights. The intent of Initiative 26 is to criminalize abortion in the State of Mississippi by defining life—and rights of citizenship—as beginning at fertilization. Other possible outcomes include criminal charges against pregnant women accused of harming fetuses and increases in the prison population from newly incarcerated women. Such a trend is already observable in Alabama. There the state prosecutes pregnant women who test positive for drugs while at the hospital, even if they are giving birth to apparently healthy newborns. Initiative 26, however, will not grant the state permission to pursue such prosecutions. In Mississippi, the state currently does not have the authority to prosecute a pregnant woman for actions, intentional or unintentional, that are harmful to her unborn child. If Initiative 26 passes, the state still will not have the direct authority to criminally prosecute a mother for harm to the fetus, because the initiative only changes the definition of person within the limited scope of the Mississippi Bill of Rights. The definition of person for all other statutes, including statutes defining crimes, will not be altered.

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