In September, Mississippi’s Supreme Court ruled that a ballot initiative to amend the state’s constitution to define embryos as persons could go forward in November. Since then, Dr. Randall Hines, one of four physicians in the state who perform in vitro fertilization, has been fielding panicked calls from women with fertility problems. “We have patients calling us who are extremely anxious,” he says. “If they are contemplating IVF, they’re asking, ‘Do I need to go ahead and do it right now, before this becomes law?’”
“I try to reassure people, to calm them down and tell them we’re going to do everything we can to ensure that this doesn’t pass,” says Hines. Still, he allows that for some women, getting started on IVF treatments before Mississippi voters decide on Amendment 26 “wouldn’t be a bad idea.” The so-called Personhood Amendment won’t outlaw all IVF, but it could drastically change how it’s practiced, making it less effective and more dangerous. “It’s certainly possible that certain IVF practices would become illegal,” says Hines. “It could alter the way an individual patient and physician would interact. Quite honestly nobody knows what would happen, because this is uncharted territory.”
The personhood movement, which aims to put initiatives like Mississippi’s on the ballots of nine other states in the next year, represents a radical new anti-abortion legal strategy. It’s built around a few lines in Roe v. Wade that grapple with the question of whether a fetus is a person under the 14th Amendment. “If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment,” wrote Justice Harry Blackmun, before concluding that a fetus is not in fact a person. The personhood movement believes that by legally changing the definition of what a person is, it can undermine Roe v. Wade and outlaw abortion. But should any state actually pass a personhood amendment, it would impact IVF as well. That is not accidental.
The personhood movement believes that by legally changing the definition of what a person is, it can undermine Roe v. Wade and outlaw abortion, but it would impact IVF as well.
Should Mississippi’s initiative pass, “it would ban some current practices of IVF,” acknowledges Keith Mason, the 30-year-old president of Personhood USA, an organization pushing for personhood amendments at both the state and federal level: “The creation of 30 or 60 embryos and then picking through them to see which ones are most likely boys or girls, or basically looking at the ones you want to give life to and destroying the rest.” Eric Webb, an anti-abortion Mississippi ob-gyn and prominent supporter of Amendment 26, has said repeatedly that it will outlaw the freezing of embryos, an important part of the IVF process.
As Hines explains, for IVF to have a decent chance of success, doctors have to try to fertilize more eggs than they intend to implant. “A basic problem in IVF is that we cannot look at an egg and determine that egg will get you pregnant,” he says. “In order to enhance the pregnancy rate, we stimulate the patient and take all the eggs that we can get and combine those with sperm. Then the eggs and the sperm determine which ones are actually going to lead to pregnancy. Some will not fertilize. Some will not become embryos, and some embryos will not progress.”
However, if several embryos do progress, it can be dangerous to implant them all, since that can lead to multiple pregnancies. The extra embryos are typically frozen, even though many are damaged in the process, because those that aren’t can be used in another IVF cycle, saving the woman from having to go through the process of egg-retrieval all over again. If doctors only try to fertilize as many eggs as they’re willing to implant, says Hines, “We would find lower pregnancy rates overall, but potentially higher multiple pregnancy rates in certain patient groups.”
The first personhood initiative to make it onto a state ballot was in Colorado in 2008, a campaign Mason managed. It lost overwhelmingly, getting just 27 percent of the vote. Anti-abortion activists tried again two years later, and lost again, though that time they got 30 percent of the vote. Mason counts such incremental improvements as victories. “We literally converted people at the polls, and it’s likely that we converted some Democrats to vote for the most pro-life position you could have,” he says.
The campaign, he says, was a powerful anti-abortion organizing tool. “I’ve lived in Colorado,” says Mason. “Before personhood, there were pro-life efforts, but they were hard to see. After personhood, we have a database of 320,000 pro-lifers in Colorado, with 4,000 people actively volunteering and donating.”
Soon, with the help of Personhood USA, activists in other states were planning similar measures. “We are going to push to see personhood on the ballot in Arkansas, Nebraska, Oklahoma, North Dakota, Montana, Colorado, Florida, Oregon, and Ohio,” says Mason. But first, there’s Mississippi, which is probably the state where personhood has the best chance of passing.
For those who are pro-choice, it’s easy to be complacent about this. After all, even if personhood passes, it almost certainly will be ruled unconstitutional. There are plenty of people in the anti-abortion movement who object to the personhood strategy for precisely this reason. Phyllis Schlafly’s Eagle Forum came out against Colorado’s personhood amendment, writing, “This poorly designed initiative would not prevent a single abortion even it if became law, and its vague language would enable more mischief by judges.”
Alexa Kolbi-Molinas, staff attorney at the ACLU’s Reproductive Freedom Project, agrees that the amendment won’t stand, but insists that it could still have troubling repercussions. “People think, Oh well, they’re going to try to ban abortion but they’re not going to get away with it,” she says. “In Mississippi, there are a host of other issues—how does it change property law, districting, how do you count your citizens. You could imagine a new court case filed every day.”
It’s important to note that while abortion and contraception are constitutionally protected rights, IVF is not. “It seems to me that there is a real denial of what this could or could not mean for IVF,” says Jonathan Will, director of the Bioethics and Health Law Center at the Mississippi College School of Law. “In my mind what that it comes down to is how committed are we to this position that pre-embryos are people just like you and me. Because if we are committed to that position, these sort of restrictions logically follow from that commitment.”
Mason insists that his preferred approach to IVF has been used successful in other countries, particularly Germany and Italy, which have had Europe’s strictest laws governing IVF. In those countries, he says, “You create life that you’re willing to give life to. In Germany, for instance, you create one embryo and you implant that embryo. In Italy, it’s four children, whatever a woman can safely carry.”
This isn’t quite true, though Germany, where the legacy of Nazism has made anything that smacks of eugenics taboo, does indeed tightly regulate IVF. German doctors are limited to retrieving three eggs at a time, and all resulting embryos must be implanted, whatever their quality. (Egg donation and surrogacy are banned.) One result of these rules is that many Germans leave the country to seek help for infertlity; according to The Independent, of 400 foreign couples treated by Spain’s Infertility Institute of Valencia in 2001, half came from Germany.
Meanwhile, following the passage of Italy’s 2003 law regulating IVF, success rates dropped precipitously—according to one study, among younger patients with good ovarian response, the pregnancy rate went from 48.9 percent to 26.6 percent. The law has since been declared unconstitutional.
For Mississippi women desperate to become pregnant, the prospect of seeing their chances drastically curtailed is terrifying. Thus, they’ve been some of the strongest voices against the personhood amendment. A little over a month ago, Atlee Breland, a mother of three children conceived through intrauterine insemination—a less invasive form of assisted reproduction that couples often try before progressing to IVF—founded Parents Against 26, and has been traveling the state speaking out. “The medical realities of the IVF process definitely mean that 26 is a serious, serious threat to the family-building options of thousands and thousands of Mississippi women just like me,” she says.
Her website is full of the testimonies of women, many of them anti-abortion, who worry that should Amendment 26 pass, they’ll never have babies. “I will need another IVF cycle if not 2 or 3 more to achieve my dream of becoming a mother,” wrote one woman. “My last IVF cycle, I had 21 eggs retrieved. A few days later, I had only 2 viable embryos available to transfer. I cannot afford to do IVF if I can only have 2-3 eggs fertilized.”
Mason is unapologetic about the limitations he hopes to impose. “I liken it to a building contractor that builds homes,” he says. “[He] would prefer to build these homes without any building code, it would be cheaper, it would be easier for him to do that, but we have building codes to protect human life. We have regulations to protect human life. Personhood would create a need for regulation to protect human life in the IVF process. It may not be as financially lucrative for the IVF physician, but that shouldn’t matter when we’re dealing with human lives.”