Legal Rights for Fertilized Eggs? How a Terrifying Law Could Lead to Jail-time for Miscarriages, Birth Control Bans, and the End of Legal Abortion

Dr. Freda Bush has a warm, motherly smile. In her office just outside Jackson, Miss., she smiles as she hands me a brochure that calls abortion the genocide of African-Americans, and again, sweetly, as she explains why an abortion ban should not include exceptions for rape or incest victims. The smile turns into a chuckle as she recounts what the daughter of one rape victim told her: “My momma says I’m a blessing. Now, she still don’t care for the guy who raped her! But she’s glad she let me live.”

Bush is smiling, too, in the video she made to support as restrictive an abortion ban as any state has voted on, Initiative 26, or the Personhood Amendment, which faces Mississippi voters on Nov. 8. “It doesn’t matter whether you’re rich or poor, black or white, or even if your father was a rapist!” she trills. But Initiative 26, which would change the definition of “person” in the Mississippi state Constitution to “include every human being from the moment of fertilization, cloning or the equivalent thereof,” is more than just an absolute ban on abortion and a barely veiled shot at Roe v. Wade — although it is both. By its own logic, the initiative would almost certainly ban common forms of birth control like the IUD and the morning-after pill, call into question the legality of the common birth-control pill, and even open the door to investigating women who have suffered miscarriages.

Personhood amendments were once considered too radical for the mainstream pro-life movement, but in the most conservative state in the country, with an energized, church-mobilized grass roots, Mississippi could well be the first state to pass one. Initiative 26 even has the state’s top Democrats behind it.

And in Bush, it even has a respectable medical face. Last month, Bush led a press conference of fellow gynecologists to try to refute the “scare tactics” of the opposition, which includes even the solidly conservative Mississippi State Medical Association. (The group feared 26 would “place in jeopardy a physician who tries to save a woman’s life.”) In one of several “Yes on 26″ videos in which she stars, Bush says unequivocally, “Amendment 26 will not ban contraception.”

But when we spoke, Bush was far less sure. And if her smiling face carries the day, the debate over even basic access to birth control could be heading to similar votes in every state legislature, and extremists have their dream case to take to a Supreme Court where the Roe majority teeters precariously.

- – - – - – - – - -

That’s partly because the Personhood movement hopes to do nothing less than reclassify everyday, routine birth control as abortion. The medical definition of pregnancy is when a fertilized egg successfully implants in the uterine wall. If this initiative passes, and fertilized eggs on their own have full legal rights, anything that could potentially block that implantation – something a woman’s body does naturally all the time – could be considered murder. Scientists say hormonal birth-control pills and the morning-after pill work primarily by preventing fertilization in the first place, but the outside possibility, never documented, that an egg could be fertilized anyway and blocked is enough for some pro-lifers.

Indeed, at least one pro-Personhood doctor in Mississippi, Beverly McMillan, refused to prescribe the pill before retiring last year, writing, “I painfully agree that birth control pills do in fact cause abortions.” Bush does prescribe the pill, but says, “There’s good science on both sides … I think there’s more science to support conception not occurring.” Given that the Personhood Amendment is so vague, I asked her, what would stop the alleged “good science” on one side from prevailing and banning even the pill?