Consequences of Granting Legal Status to a Fertilized Human Egg

MS. DIANE REHM

10:06:54
Thanks for joining us. I'm Diane Rehm. In 1973, the U.S. Supreme Court's Roe v. Wade decision granted women the right to have an abortion in the first trimester. Since then, anti-abortion advocates have worked to overturn that ruling. They've made gains in recent years by chipping away at laws on the state level. Now there's a ballot measure in Mississippi that would give fertilized human eggs legal status.

MS. DIANE REHM

10:07:34
We talk about the Mississippi initiative and measures elsewhere in the country. Joining me here in the studio, Robert Destro of the Catholic University of America, Suzanne Novak of the Center for Reproductive Rights and Jon Fasman of The Economist magazine. I hope you'll join us, 800-433-8850. Send us your email to drshow@wamu.org.

MS. DIANE REHM

10:08:13
But first, joining us by phone from Mississippi is Walter Hoye. He's a spokesman for Personhood USA, president of the Isssues4Life Foundation in California. He's in Mississippi to promote the Personhood initiative to communities of color. Good morning to you, sir. Thanks for joining us.

MR. WALTER HOYE

10:08:43
Good morning. How are you?

REHM

10:08:44
I'm very well. Sir, I want to just, to begin, read to our audience Amendment 26 of the measure that's on Mississippi's ballot this November that actually defines a person as being every human being from the moment of fertilization, cloning or the functional equivalent thereof. Tell me how you would express the ultimate goal of Proposition 26 in Mississippi.

HOYE

10:09:33
The ultimate goal of the amendment, 26th in Mississippi, is probably more into personhood, and that being realizing the final chapter of the civil rights movement, where everybody is recognized as a person.

REHM

10:09:57
And that means from the moment of conception? Is that correct?

HOYE

10:10:06
It means from our earliest biological beginning, that single-cell embryo, through the senior citizen who's facing end-of-life decisions, to the disabled war veterans. Everybody is a person.

REHM

10:10:21
I understand, Mr. Hoye, that you've been tasked with speaking to communities of color in Mississippi about the issue. What is it that you say specifically to them?

HOYE

10:10:37
Well, one, I do some of what you've done. We do talk about the language. We do address, you know, the -- some of the questions that anybody have, and then we -- I remind them what it was like when we were not persons, and then we get it. We understand what's happening when somebody is deciding who is a person and who isn't a person.

REHM

10:11:06
I wonder how you respond to what many people who've studied the Mississippi initiative say, indeed that it could restrict birth control. How do people respond to that aspect of it?

HOYE

10:11:28
When we get those questions, we've got to get people to understand what birth control we're talking about. Either birth control is taking the life of an innocent human being or it's not. If it's not taking the life of an innocent human being, then it has no impact on birth control.

REHM

10:11:46
Well, but if one uses, for example, an IUD, which, I gather, is part of that Mississippi initiative, isn't that restricting a form of birth control?

HOYE

10:12:06
One, Diane, again, the amendment just defines the term person. That's all the amendment does. There's nothing in the amendment regarding birth control or IUDs of IVFs or anything like that. So people are gonna be able to use the birth control that they're already using. Now, it has nothing to do with restricting birth control unless birth control is taking the life of an innocent human being.

REHM

10:12:34
Well, help me understand. In what case birth control would be taking the life of a human being?

HOYE

10:12:46
Well, once the sperm and the oocyte come together and we have single-cell embryo, we have human life, with everything it needs to go forward. At that point, some birth control does take the life of that human being.

REHM

10:13:05
What form of birth control takes the life of that human being?

HOYE

10:13:11
Well, RU-486, ellaOne, for example.

REHM

10:13:16
Oh, you're talking about the morning-after kind of pill?

HOYE

10:13:24
Yeah.

REHM

10:13:25
But you're saying that there is no restriction on any form of birth control within than Mississippi initiative?

HOYE

10:13:40
No. Well, yes. I'm trying to agree with you. It just defines the terms. And the only birth control that's impacted by it, doesn't measure. If anything, that literally takes the life of that single-cell embryo...

REHM

10:13:57
But...

HOYE

10:13:58
...that human being by the woman.

REHM

10:13:59
Okay. Do you believe then that the morning-after pill or any form thereof would be considered taking the life of a human being?

HOYE

10:14:17
Yes, I do.

REHM

10:14:19
Do you consider that an IUD would be taking the life of a human being?

HOYE

10:14:31
It falls into this category, Diane. Once that embryo is formed, any birth control that ends the life of that human being will be impacted by these measures.

REHM

10:14:49
So that would then include the IUD? What about the birth control pill?

HOYE

10:15:01
It's falls in -- if that falls in the same category, yes.

REHM

10:15:06
So you're saying that birth control pill could be considered as taking the life of a human being?

HOYE

10:15:18
I'm saying that once the egg and yolk sac come together, and you have that single-cell embryo at that point, you have human life -- you've got a human being, and it would taking the life of a human being with some forms of birth control. And if birth control falls into that category, yeah, I am.

REHM

10:15:43
All right. Let's move on. If you give a fetus legal status, medical decisions then could be made by people other than the pregnant woman herself even if it's detrimental to the woman's health. Is that correct?

HOYE

10:16:09
No. Medical doctors will be able to proceed just like they always have. As a matter of fact, I like to see medical doctors save -- make every effort to save both the woman and the child. I'm not seeing any type of restrictions on what medical doctors can do.

REHM

10:16:30
But what if the woman herself decides that carrying the baby, in consultation with her doctor, could be detrimental to her health? How would you feel about allowing that woman to make that decision?

HOYE

10:16:56
I don't feel anyone, Diane, man, woman, boy or girl has the right to kill an innocent human being. That's where I stand on that issue.

REHM

10:17:08
Okay. And what about in-vitro fertilization? Where do you come down on that?

HOYE

10:17:18
This, again, has no impact on in-vitro fertilization. That is not gonna be impacted. They make thousands of embryo and freeze them. But if the embryo that the woman needs to carry the child - they'll still be able to do that -- that would still be available to the public.

REHM

10:17:43
What about those embryos that are not used?

HOYE

10:17:51
Again, it comes back to what we believe, that those embryos are human beings, and we're freezing them, thawing them out and then we’re using them in experiment. No, we're not for that at all because we believe that's a life, a human life, a living human being. But if someone wants to come in and benefit from in-vitro fertilization, they'll still be able to do that.

REHM

10:18:18
And I want to thank you for joining us, Walter Hoye. He's a spokesman for Personhood USA, president of the Issues4Life Foundation in California. He's in Mississippi to promote the Personhood initiative to communities of color. Thank you so much, sir, and we'll be right back.

REHM

10:20:03
And we're back. I want to turn now to Suzanne Novak. She's senior staff attorney for the Center for Reproductive Rights. Suzanne, what specifically will Mississippi's voters look to as they vote yay or nay on proposition 26?

MS. SUZANNE NOVAK

10:20:27
Well, I hope that they will look at the impact that passing this will have amid the onslaught of attacks on reproductive rights around the nation. This personhood ballot is the most extreme, the most dangerous and the most out of touch with American values.

REHM

10:20:43
How so?

NOVAK

10:20:45
It not only bans abortion in all circumstances even when the woman's life is in danger, even if she's pregnant as a result of rape. But it also will ban many forms of contraception, as Mr. Hoye admitted to a few minutes ago. It will put doctors at risk of criminal prosecution for performing common obstetrical and gynecological procedures. It will probably put an end to infertility, and it will even put women at risk of criminal prosecution for miscarriages.

REHM

10:21:16
How so?

NOVAK

10:21:18
If a woman, let's say, has exercised too much or got in a car accident. If her - the fertilized egg is considered a person and, for any reason, she was at fault, she could be prosecuted for initiating that miscarriage. And this isn't something that is just fanciful. This has actually happened recently. There was a woman in Iowa who felt faint and fell down the steps, and she was pregnant. And she was threatened with prosecution.

REHM

10:21:49
Isn't there, within the law or within the proposition, Jon Fasman, a question as to whether any miscarriage will be investigated?

MR. JON FASMAN

10:22:05
I think there is. I mean, I think it's important to remember Mr. Hoye was somewhat evasive in his answer. The law says what it says. It doesn't say what supporter say it says. And to the extent that and embryo has legal rights if that embryo is harmed there is a risk of criminal prosecution.

REHM

10:22:24
From your point of view, Bob Destro, you say this is somehow back to the future.

PROF. ROBERT DESTRO

10:22:32
Yeah. Well, certainly it is back to the future. If you were to go back to Roe v. Wade, you'd find that the Texas Supreme Court had held that the fetus is a person under the Texas constitution. And that's what the Supreme Court blocked in Roe v. Wade. So this is back to the future. This is basically going back to the states making a policy statement that they want this to be considered two lives and being.

PROF. ROBERT DESTRO

10:23:03
For purposes of other parts of the law, for example, in a state's law, a fetus is a life and being. You know, in Georgia where they have an embryo adoption law, a fetus is a life and being, so there's nothing really new here.

REHM

10:23:17
It sounds pretty new to me though if someone can be at least investigated, if not prosecuted, for miscarriage.

DESTRO

10:23:30
Well, you know, the law doesn't say that. And I think that what Mr. Hoye was saying, and I think he's right, is that they're setting down a marker, and they're saying the Supreme Court in Roe got it wrong. They said that a fetus is not a person for purposes of the 14th Amendment. This law doesn't say a fetus is a person for purposes of the 14th Amendment. Mississippi doesn't have that authority. So Roe v. Wade remains the law of the land with this in there, and the law will simply have to adjust. I mean, there are fetal homicide statutes in other states.

REHM

10:24:04
Do you have the amendment wording in front of you? Could you read it for us, Suzanne? I have only a portion of it.

NOVAK

10:24:20
OK. It states that the term person or persons shall include every human being from the moment of fertilization, cloning or the functional equivalent thereof.

REHM

10:24:31
And that's all. That's all it says. Jon Fasman, how likely is this to pass?

FASMAN

10:24:38
Almost certain to pass. Mississippi is a very religious, very conservative state. The person who'd the initiative in Mississippi has waged a fierce and very, very smart campaign. You had Mr. Hoye on. They've been especially good in reaching out to communities of color, and these are communities that may not see eye to eye with other persons who'd support us on every issue. But they had said -- I was lucky enough to attend a rally in support of personhood at a predominantly African-American church in Jackson, Miss.

FASMAN

10:25:09
The bishop there said, look, we may not see eye to eye with supporters of personhood on every single issue. We may traditionally vote Democratic, they may vote Republican, but on this issue, we'll come together. And the Personhood movement has been very good at laying that groundwork, and I think it's almost certain to pass.

REHM

10:25:23
Suzanne, what does this mean? As one of our callers asked, he says, often in in-vitro fertilization, a number of eggs are fertilized in order to maximize the chances of a pregnancy. Would this law mean that it would be considered a murder to not implant a fertilized embryo?

NOVAK

10:25:55
I'm not sure that it would be considered murder to not implant it, but it would be considered murder to somehow destroy the embryo. And I think that this -- if this passes, that it will be the end to infertility in the state of Mississippi. A doctor -- the doctors who practice infertility handle embryos as part of their everyday procedures. And if this passes, they will be under risk of prosecution if anything goes wrong, up to the point of a prosecution for murder.

NOVAK

10:26:28
And, for example, if the embryos are stored somewhere, if there were a power outage, you could have prosecution for mass murder if you have hundreds or thousands of embryos destroyed. So you'd have to have a very high risk tolerance to continue practicing infertility in the state of Mississippi if this passes.

REHM

10:26:45
Robert Destro.

DESTRO

10:26:46
I think that completely ignores the economics of infertility treatment. Those who have been through it know that there's a tremendous shortage of available infants for adoption. And we have a lot of case law dealing with what do you do with frozen embryos. And so part of the rationale for embryonic stem cell research and the use of frozen embryos is because you can't release them, they're considered property under most state law.

DESTRO

10:27:18
And so this would reverse that. It would basically -- you can have a property interest in a -- in an embryo anymore. And so the question would be then parents would be encouraged to let the excess embryos go and put them up for adoption. And that's actually happening in Georgia. Georgia has an embryo adoption statute. Pro-choice advocates made exactly the opposite argument.

DESTRO

10:27:43
They didn't like it in Georgia, but it's going along fairly well. So I think Mississippi actually -- I think reproductive health doctors will actually make more money in Mississippi.

REHM

10:27:55
Suzanne.

NOVAK

10:27:56
Yes. What is important for your listeners to understand is that every major medical association both within Mississippi and nationwide are uniformly against this ballot initiative. The Mississippi State Medical Association has said, "The common procedures we use now could be interpreted as murder or wrongful death if proposal 26 passes." The American Society for reproductive medicine is against it.

NOVAK

10:28:20
It says amendment 26 is scientifically imprecise to the point of being nonsensical. These are not fanciful arguments that this would -- that this initiative would drive practitioners out of state or put them at risk of prosecution. That's why the doctors themselves, the nurses association are all against its passage.

REHM

10:28:39
Would this sort of measure -- since Bob Destro says it was considered back then in '73 -- would it have to face a Supreme Court challenge?

DESTRO

10:28:55
I think that's the goal of the movement. Yes. It's to initiative -- it's twofold. First, to initiate a court battle that leads its way up to the Supreme Court and forces them to consider this question. And it also is to have a federal amendment protecting personhood put on the books. That's something that personhood spokesman had been quite vocal about. I think another interesting thing about this is that a number of right to life organizations oppose the personhood amendment because they think it's a tactical mistake.

DESTRO

10:29:20
The National Right to Life Council, James Bopp has said that the problem with this is that if it leads -- if it went its way up to the Supreme Court, that you could have a situation where the court redefines how abortion is protected. And instead of being protected through the due process clause of the 14th amendment, it could be protected through the equal protection clause of the 14th amendment.

FASMAN

10:29:40
Now that's something Justice Ginsburg has written about in the past. If that is the case, then abortion will actually be -- enjoy far greater federal protection than it does now.

REHM

10:29:50
Depending on who's on the court?

FASMAN

10:29:52
Depending on who's on the court, of course. Yes.

REHM

10:29:54
And as the court is currently comprised?

FASMAN

10:29:58
And as the court is currently comprised. I think it would probably -- I don't know. Yeah.

REHM

10:30:04
Suzanne?

NOVAK

10:30:05
Yes. I am confident -- this law is so extreme. I have to disagree with Bob, who says it's reversed back to the future because we have never had a law that restricts abortion in all circumstances, that will let women die rather than perform an abortion, a law that bans contraception, a law that puts women at risk of prosecution and doctor's prosecution for every obstetrical procedure. I think that this law will be dead on arrival in the courts, and I think that the American public will not be for such an extreme law that puts such health and lives in risk.

REHM

10:30:45
Of course, the Mississippi state Supreme Court would have to hear this first, wouldn't it?

DESTRO

10:30:55
No.

REHM

10:30:55
No?

DESTRO

10:30:55
No, they would not. And, again, Suzanne says that it's dead on arrival. This is not attempting to define federal law with respect to person. It defines Mississippi law with respect to person. And so there's nothing Mississippi can do right now to criminalize abortion. Roe v. Wade is still the law of the land. And it's only as you get into the more extreme interpretations that Suzanne is giving you -- I mean, you still got to get legislatures to pass laws like that, and they're not gonna do it.

REHM

10:31:29
What about that? Aren't there other states considering the same kind of law?

FASMAN

10:31:35
There are. I believe it's on a half dozen states ballots now for 2012, and there may be more.

REHM

10:31:41
Where?

FASMAN

10:31:42
Florida, Ohio, Montana, Wisconsin, and then the other two slipped my mind. But there -- yeah, certainly six of them.

REHM

10:31:51
So is -- are there other states likely to go for this?

FASMAN

10:31:57
I think that's a very good question. I think there is -- the Pew survey a couple of years ago found that there was no state as religious as Mississippi, no state in which voters consider religion as important. And I think that's an important part of this ballot measure's popularity. So I think in other states -- it failed in Colorado twice. I think in other states you would see a much more serious fight over its future than in Mississippi.

REHM

10:32:19
And has this now passed both houses, or is it likely to pass both houses of Mississippi state legislature?

FASMAN

10:32:32
I -- you know, this doesn't do that. It's a strict referendum to get this amendment put on the Constitution. So it's not a -- it doesn't go through the legislature.

REHM

10:32:40
I see. I see.

FASMAN

10:32:41
It just is subject to the voters.

REHM

10:32:43
Jon Fasman, he's Atlanta correspondent for The Economist magazine. And you're listening to "The Diane Rehm Show." It's time to open the phones. First, we'll go to Cleveland, Ohio. Good morning, Trisha. (sp?) You're on the air.

TRISHA

10:33:03
Thank you. My question just is when everyone is defining personhood, and even to say that a fetus of any size, two cells or more, is a person, the fact of the matter is it requires a mother. And so the two are inextricably entwined. You cannot separate that. And by calling one of them a person without including the other is a mistake. It just seems like it's a rhetorical mistake, but it's a little bit deeper than that.

TRISHA

10:33:38
And I know that the rhetoric here gets real tangled up. It's kinda like Sartre, the same idea. But you cannot even talk about a fetus as if it stands alone because it does not. And if you allow the state to interfere in circumstances in which they can have no personal knowledge, you have a tyranny.

REHM

10:34:04
What do you think about that, Bob Destro?

DESTRO

10:34:07
Well, first of all, in Roe v. Wade -- excuse me -- the court basically said that the personhood that a fetus is not a person, it really didn't care about its status, and it's -- it was irrelevant. And that's why I wanna correct what you said at the beginning a little bit with some respect that the -- that Roe. v. Wade didn't legalize abortion in the first trimester. It legalized abortion for the entire pregnancy if the woman had a health reason for terminating the pregnancy.

DESTRO

10:34:37
So we have to understand that the way Roe works, and that's why the point that was made about, you know, a different theory of Roe is important because the court defined the right as the right to terminate a pregnancy. And when you're dealing with frozen embryos, there's no pregnancy to terminate, and you do have separation, and you do have the possibility of life continuing without the biological mother.

DESTRO

10:35:04
And that's why the New York Court of Appeals, which would never be mistaken for a conservative court, said that Roe. v. Wade is irrelevant in embryo custody disputes.

REHM

10:35:13
Suzanne.

NOVAK

10:35:14
I think the caller brings up a good point, which is forgotten in all this and all this language, is the woman. And that is, we know -- we hope we can all agree -- that is the person at issue here. And if you define a fertilized egg as a person, then you -- they will often be in conflict when the woman's health or life is in danger. As Bob pointed out, Roe said you have to -- a woman has to be able to terminate if her health is at risk, and this personhood amendment has no such exception for it.

NOVAK

10:35:48
So, for example, if a woman has an ectopic pregnancy, which means that the fertilized egg is in her fallopian tube and not in her uterus, that egg cannot develop into a baby, and it will kill the mother if it remains in there. And so there is no exception in this ballot measure. If a doctor saved that woman's life by removing that embryo, he could be charged for murder.

REHM

10:36:14
What are some of the other complications you see of this particular referendum?

NOVAK

10:36:22
In terms of abortion?

REHM

10:36:24
In terms of everything we're looking at.

NOVAK

10:36:24
Yeah. Right. In terms of, I mean, obstetrical care, anytime a doctor performed a procedure on a woman, let's say performed an amniocentesis, and we know that there's a risk of losing her pregnancy, that doctor could be charged for murder or manslaughter.

NOVAK

10:36:43
If a woman comes in and she is hemorrhaging and she's pregnant, she -- the pregnancy cannot continue, but there's still a fetal heartbeat, the doctor, if he or she didn't wait until the heartbeat ended, would be at risk for murder or manslaughter if he helped that woman. So he or she might be put in a position where they would have to choose between letting this woman hemorrhage to death or performing an abortion.

REHM

10:37:10
Jon Fasman, you've been covering this subject. Tell me whether these concerns from your reporting have arisen.

FASMAN

10:37:20
They have, but they've arisen quite late. The opposition to the Personhood movement, from my reporting, was late getting off the ground, and it's fairly weak.

REHM

10:37:30
Jon Fasman, he's a reporter for The Economist magazine. We'll take a short break. More of your calls, your email, when we come back.

REHM

10:40:02
And let's go right back to the phones, to Linville, N.C. Good morning, Jessie.

JESSIE

10:40:10
Good morning, Diane. Thank you for taking my call.

REHM

10:40:12
Surely.

JESSIE

10:40:13
My question has been touched on already a little bit. It -- pardon me, it concerned ballot initiative such as this, where -- how they would handle inherent risk of miscarriage with routine and recommended tests such as amniocentesis and CVS, who would be prosecuted? The mother? The doctor? The nurses as well.

JESSIE

10:40:37
Also, in such cases where fertilization has occurred but we can't have or there won't be the development of a baby, as the lady mentioned a few moments ago, an ectopic pregnancy, but those put the mother at such a great risk. I just feel like we're going down a terribly slippery slope here in these decisions.

REHM

10:41:08
Suzanne, slippery slope.

NOVAK

10:41:11
I agree. It is a slippery slope, but even more than a slippery slope, it's right here on this ballot measure. For what the caller brings up, it's why all the medical associations, the nurses -- if those situations happened, everybody could be prosecuted: the doctors, the nurses, the women. And all the associations are against this, not just because they could risk prosecution, but because their jobs are to protect women's lives and health, and this really undermines it.

NOVAK

10:41:40
But like I said before, I don't think that this will pass constitutional muster. It's dangerous that these sorts of fringe extremist groups are pushing these, but I don't think they'll become the law of the land.

REHM

10:41:53
And, Bob Destro, some, as we've already said, some anti-abortion groups as well as religious groups such as the Roman Catholic bishops are not supporting the Mississippi measure. Tell me why.

DESTRO

10:42:12
Well, by and large because exactly, I think, as Jon said that it's a question of tactics. I mean, what do you do given the current political situation, where do you put your time? Where do you put your money? And the one thing I do have to disagree with Suzanne on is that those of us who support these kinds of things are not right-wingers. We're not crazy. You know, we believe that women should be taken care of and that they're -- part of that -- not only part of that equation, the mother is the person who's gonna eventually have to take care of the baby.

DESTRO

10:42:45
So doctors and medical professionals are charged with the duty of taking care of both of them. Every reasonable doctor that I know sees both the mother and the -- and her unborn baby as being part of -- as being two patients.

REHM

10:42:59
But tell me precisely why you've got the Roman Catholic bishops against this.

DESTRO

10:43:07
Well, I mean, I don't know that there -- they've come out with a formal statement against it. I've never seen a formal statement. I would be really surprised if you ever did because if you actually pin them down, they'd say, yeah, this is exactly what we've been teaching for a long time. And -- because Roe v. Wade doesn't say that a fetus can't be a person. It just says, as far as we can tell, reading the Constitution here in 1973, you know, it's not a person as far as we can see.

REHM

10:43:35
All right. Here's an email from Eileen in Vienna, Va., who says, "So if my fetus is a person, I will claim the IRS deduction for a dependent during pregnancy. And since every month I could possibly be carrying a new person until the next menstruation cycle tells me I'm not, I will always be able to claim that deduction? How does the IRS like that, deduction ad absurdum?"

NOVAK

10:44:14
Yes, I think your listener has a good point. There will be tons of unintended consequences of this law, and there's only so much we can foresee now for taxes, who's the dependent, how you count the population for districting purposes, for congressional elections. And person usually appears in the law in thousands of places. So we'll, you, know, we'll have to see how that plays out if it's gonna cause some havoc. But again, the most immediate consequences are threatening women's lives and health and their constitutional rights

REHM

10:44:46
All right. To Fort Worth, Texas. Good morning, Martin.

MARTIN

10:44:51
Yes, good morning. Let's say that a young woman travels to a neighboring state and acquires RU486 on the belief that she is pregnant and, somehow or another, officials learn that she has done this, can someone travelling outside of the state and then reentering the state then be charged? Thank you.

REHM

10:45:16
Suzanne.

NOVAK

10:45:18
It would really matter who would have jurisdiction over that person and that activity and where it was deemed that a potential crime took place. But RU486 is an abortion pill. And if this ballot initiative passes and a person used that, then they could be subject to prosecution.

REHM

10:45:41
Do you disagree with that, Bob?

DESTRO

10:45:44
Well, I think that the answer wasn't as clear. I mean, I think that Suzanne's right when she says the question of who has jurisdiction. If you go out of state and the other state makes it legal, there's nothing that Mississippi can do about it.

REHM

10:45:55
But supposed you've told a friend that you're going to another state to get RU486 and that friend happens to disagree with you morally, legally, every other way and tells on you. Then what happens?

DESTRO

10:46:16
Well, you still have to get somebody to try and stop her. And I could add...

REHM

10:46:21
No, no. But I'm talking about after the fact, not...

DESTRO

10:46:24
After the fact, there's nothing that Mississippi can do. You can't prosecute -- Mississippi cannot prosecute crimes and -- that occur out of state.

REHM

10:46:33
Suzanne, do you agree?

NOVAK

10:46:34
I agree that they can't prosecute if you took the bill out of -- you took the pill out of state. But if you come back into Mississippi and you ingest the pill, then you have committed a crime in the state of Mississippi.

REHM

10:46:45
All right. Let's go to Chantilly, Va. Good morning, Lynne.

LYNNE

10:46:50
Good morning. Can you hear me okay?

REHM

10:46:52
Surely.

LYNNE

10:46:53
Good. I'm again on the absurd interpretation of this thing. But I'd like to know how soon after you have sex, say, with your husband and it's unprotected, you would have to go and get a test to find out if you're pregnant or not so you can know how to behave subsequently with regard to this fertilized egg? And is there a way to test the morning after unprotected sex to know if you're pregnant or not, I mean, whether or not you've got a fertilized egg or not?

LYNNE

10:47:26
And then could you then go, you know, the other lady wanted to claim IRS deduction benefits. I'd like to claim, say, welfare benefits, immediately for another child. Or I'd like to go buy movie tickets, and I don't know how many people to say I need tickets for. I mean, it really is absolutely unmanageable, I would think.

REHM

10:47:47
Jon Fasman.

FASMAN

10:47:49
Welfare recipients, well, good luck. But I think these are questions that are asked that's, you know, I don't think that she'll be getting any deductions for -- from the IRS, and I don't think she'll be claiming any beneficiaries.

REHM

10:48:04
I think all this comes down to how does the law know when a child has been conceived, how does the legal community get involved with this, Suzanne.

NOVAK

10:48:23
These are very good questions, I think. if you are a sexually active woman, you're gonna have to be very concerned because, first of all, you can't use many forms of contraception if this passes. And second of all, you have to be aware. Like your caller asks, you have to always worry if you're pregnant. And if you don't even know it, you could me prosecuted if something happens even if you didn't know you were pregnant.

REHM

10:48:46
All right. To Ann Harbor, Mich. Good morning, Harry.

HARRY

10:48:50
Good morning, Diane. Nice to talk to you, Diane.

REHM

10:48:52
Thank you.

HARRY

10:48:54
In the whole spirit of reductio ad absurdum, this law seems, to me, to open any woman who menstruates to potential charge of homicide. Consider, the sperm is really not necessary to begin cell division. Any mechanical irritation will begin the process and will carry through maybe as many as four divisions before spontaneous miscarriage. That being the case, an unfertilized egg is as much a person under this law as a fertilized egg. In which case, any woman who ovulates without becoming pregnant is guilty of homicide.

REHM

10:49:36
What do you think about that, Bob Destro?

DESTRO

10:49:39
Well, I think he -- the caller summed it up just right. That's an absurd statement. I think that much of this presupposes the people who are pro-life are crazy. We're not crazy and the people who are enforcing the law are not crazy, and they're not gonna be chasing people. If you go back to Roe v. Wade, this did not happen. They didn't prosecute women. They prosecuted the doctors.

DESTRO

10:50:04
So this whole idea that women are somehow at risk here is just, you know, these are the same laws that apply to inheritance and everything else they considered, but the baby usually has to be born first. You don't count the baby for taxes until it's born. You don't get welfare until it's born. You don't count it for apportionment until it's born. So, you know, the baby has to be alive at the end.

REHM

10:50:28
But this referendum would change that?

DESTRO

10:50:33
No, it would not.

REHM

10:50:35
I don't understand.

DESTRO

10:50:37
All it changes, Diane, is -- actually, it doesn't change anything. The states still have the power to define an unborn baby as a person. Roe v. Wade says you cannot act on that. That's why I said it was back to the future. That's what the Texas Supreme Court said prior to Roe v. Wade that a fetus is a person under the Texas Constitution, and that's why their abortion laws were constitutional, and that's went up to the Supreme Court, and the Supreme Court struck it down.

REHM

10:51:08
Suzanne.

NOVAK

10:51:09
I think Bob hits a good point, which is this will be tangled up in the courts for years, and this is not something that we can easily decipher here. But the important thing to focus on is we know what is at risk, and it's women lives and health that are at risk. And why do we wanna put that at risk and endanger constitutional rights and women's health?

REHM

10:51:32
All right. Let's go to Oxford, Miss. Good morning, Lexie. (sp?) You're on the air.

LEXIE

10:51:39
Hi there. Thank you very much for taking my call.

REHM

10:51:41
Surely.

LEXIE

10:51:42
Anyway, I was just calling 'cause I listen to your show for a very long time. I'm actually from St. Louis, Mo. And since we don't get coverage from you, I actually stream you through my phone every morning, but I just wanted to say that as a college junior at the University of Mississippi, if this ballot had been on initiative two years ago when I was searching for schools, I seriously would have reconsidered my decision to go to this school.

LEXIE

10:52:06
Knowing that my reproductive rights are in serious jeopardy with this initiative, I just don't think that I would have been able to go to school knowing that, you know, like if I needed the pills, I need the morning-after pills or, you know, if I need an abortion, I wouldn't be able to have it.

REHM

10:52:20
Jon Fasman.

FASMAN

10:52:21
I don't doubt that there are many people like her in Mississippi. I think it's a real risk. I would like to return if I can to Robert and Suzanne's previous discussion. This is likely to be in court for a long time, and I think that is probably the principal goal of the movement is to provoke court challenges. Now, I don't know what the actual initiative does itself. If it just defines it on the ballot, as Robert says, I think the implication that Robert is giving us, that it's a pretty vapid law, but it's gonna provoke court challenges, and that's what it's supposed to do.

REHM

10:52:46
Lexie, let me ask you about something. When did you first learn about this referendum?

LEXIE

10:52:55
Honestly, I was actually working an internship in Washington, D.C., this summer, and I didn't hear about it until I came back to school in early August. And I think that that's the main problem is that most young women in the state of Mississippi right now either don't know it exists. They're not concerned with voting. It's just not, you know, at the top of their priorities. And when they hear about the implications that this initiative could have and how it could affect their, you know, their sexual lives, you know, they're really concerned.

LEXIE

10:53:20
Honestly, to my generation and the people at school right now, the pro-life movement is thinking that Initiative 26 is purely a, you know, this is a pro-life thing. This doesn't have, you know, all these, you know, these terrible, you know, implications behind it. And once they hear, you know, the scientific backing that's on our side, then, you know, young women get scared.

REHM

10:53:41
Jon Fasman.

FASMAN

10:53:43
Lexie, it's Jon. Can I ask how you heard of it and whether you are active in any campaigns against it?

LEXIE

10:53:49
I actually heard of it through a friend. And I'm actually also a columnist for the Daily Mississippian. It's our student newspaper. And when I wrote a column on it, I got in touch with several other organizations that are in and around the Oxford area. There's Mississippians for Healthy Families. There's parents against Initiative 26. There's a ton of organizations that are active. And, you know, we had a rally in Oxford last week that I actually spoke at.

LEXIE

10:54:18
And when you say that the, you know, the initiative, you know, the anti-26 movement is weak, I'd have to strongly disagree with that. We might not have the big, you know, the big funding that the personhood amendment proponents do and so that way we're not as vocal, but we're here. We're loud. We're proud. And we really are trying to change everyone's, you know, just get the information out there.

REHM

10:54:42
Thank you for calling, Lexie. It's good to hear from you.

LEXIE

10:54:45
Thank you very much.

REHM

10:54:46
Thank you. And finally, to Hopkinsville, Ky. Kelly, you're on the air.

KELLY

10:54:54
Thanks for taking my call, Diane.

REHM

10:54:55
Surely.

KELLY

10:54:56
I've -- as I've been listening here, I have kind of a different take on things. I'm thinking about the mental health of, well, say, for instance, a young teenage girl that's been a victim of a violent crime. And as a parent, unfortunately, this has been a reality for our family.

REHM

10:55:14
Oh, I'm sorry.

KELLY

10:55:17
When you think about physical health, that's one thing. But what about the mental health of someone? There's no protection for that. There's -- you can quickly eliminate the protection for something like that happening.

REHM

10:55:30
What about rape and incest, Suzanne.

NOVAK

10:55:35
That's right. This initiative has no exceptions for pregnancies that are a result of rape and incest. In fact, you know, the messages that the Personhood USA are putting out about this is that just because someone is raped that that fertilized egg does not deserve to be executed. And so they are considering the fertilized egg who they consider a person but not taking into account the woman or the young woman like the caller's daughter.

REHM

10:56:12
Bob, what do you say to that?

DESTRO

10:56:15
Well, again, I say that much of the hyperbole that we've been hearing today is just that. It's hyperbole. What I don't...

REHM

10:56:24
Hyperbole, Suzanne?

DESTRO

10:56:25
Yes. I...

NOVAK

10:56:26
No, I don't think it's hyperbole. There's no exceptions here. I mean...

DESTRO

10:56:29
Well, there's no exceptions to the idea that it's a person. This is not a law that bans abortion. Read it.

NOVAK

10:56:35
But, Bob, before, you said that women weren't prosecuted before. Women are prosecuted. You know that women are prosecuted for miscarriages or for behavior they have during pregnancy.

REHM

10:56:47
We'll have to leave it there. When does the vote take place, Jon Fasman?

FASMAN

10:56:53
Nov. 8, Tuesday.

REHM

10:56:54
Nov. 8, one week from now.

FASMAN

10:56:56
Mm-hmm. From tomorrow.

REHM

10:56:57
Jon Fasman of the Economist, Suzanne Novak of the Center for Reproductive Rights, Robert Destro of the Catholic University of America. Thank you all. And thanks for listening. I'm Diane Rehm.

ANNOUNCER

10:57:16
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