Mississippi was in the news this past week for its referendum on amending the state constitution to use conception as the threshold of legal personhood. That referendum elicited considerable amounts of commentary, but most commentators got a couple things wrong, especially the idea that the referendum would put an end to abortion in that state.
Using conception as the threshold of personhood would not override women’s right to abortions, because Constitutional Law overrides that legislative decision.
In fact, Illinois currently has on its statutes exactly the standard that Mississippi was debating.
Illinois law uses conception as the threshold of personhood and it specifically says that if Roe V. Wade is overturned, the State will forbid abortions except for the “preservation of the mother’s life.”
For those interested in the statute, here it is: “Without in any way restricting the right of privacy of a woman or the right of a woman to an abortion under those decisions, the General Assembly of the State of Illinois do solemnly declare and find in reaffirmation of the longstanding policy of this State, that the unborn child is a human being from the time of conception and is, therefore, a legal person for purposes of the unborn child's right to life and is entitled to the right to life from conception under the laws and Constitution of this State. Further, the General Assembly finds and declares that longstanding policy of this State to protect the right to life of the unborn child from conception by prohibiting abortion unless necessary to preserve the life of the mother is impermissible only because of the decisions of the United States Supreme Court and that, therefore, if those decisions of the United States Supreme Court are ever reversed or modified or the United States Constitution is amended to allow protection of the unborn then the former policy of this State to prohibit abortions unless necessary for the preservation of the mother's life shall be reinstated. (720 ILCS 510 ).
So, Illinois is making a symbolic gesture here, to override most abortions, but the threshold it uses does not override decisions by the constitutional court, and the same would have been true of the Mississippi’s change to its Constitution (had it passed).
Illinois does not itself take its own statute seriously in regard to all matters that pertain to personhood outside abortion. It does not, for example, count frozen embryos as persons entitled to legal representation. It does not forbid human embryonic research. It does not treat the destruction of human embryos as a kind of murder.
There is a difference when it comes to Illinois law and what Mississippi was proposing. Mississippi wanted to have its Constitution make the declaration that human beings come into existence for legal purposes at conception, as against Illinois making that declaration by statute. What surely would have followed in Mississippi would be years of litigation to figure out exactly what that declaration of personhood meant. I don’t assume in advance that it would stop all abortions or human embryo research, but it surely would have triggered litigation galore to figure out how it applied the entire domain in which ‘personhood’ is legally relevant.