A Textual Analysis of the Possible Impact of Measure 26 on the Mississippi Bill of Rights

Abstract:     
Measure 26, which Mississippi voters will consider on November 8, 2011, would amend the Mississippi Bill of Rights to clarify that "person" and "persons" begin at fertilization. Backers have claimed it would require the state to protect human embryos and fetuses from the moment of fertilization, while opponents have argued that it would impose liability for life-saving medicine, ban forms of birth control, or require criminal investigations of miscarriages. As the state constitution is currently understood by courts, however, these claims lack a straightforward textual explanation. Whatever the goals of backers, the text of Measure 26 is not a frontal assault on Roe v. Wade. It would offer enhanced tort remedies under section 24 of the Mississippi Constitution when embryos and fetuses are injured and would prevent state action harming embryos and fetuses under section 14. More significant effects than these, however, would depend on a state-constitutional duty to protect or ban on discrimination in the supply of protection. While the Mississippi Supreme Court might disagree with DeShaney v. Winnebago County on state-constitutional grounds or read a ban on discrimination in the supply of protection into section 14, Measure 26 itself introduces no duty to protect or such an antidiscrimination requirement into the Mississippi Constitution.

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