1 Roe v. Wade, 410 U.S. 113, 157 (1973); Jessica Berg, Of Elephants and Embryos: A Proposed Framework for Legal Personhood, 59 HASTINGS L.J. 369, 371 (2007).

2 See Karen G. Crockett & Miriam Hyman, Live Birth: A Condition Precedent to Recognition of Rights, 4 HOFSTRA L. REV. 805, 805 (1975) (The question of when legal rights inhere in the unborn has never been clearly resolved.).

3 See Jason M. Horst, The Meaning of Life: The Morning-After Pill, the Question of When Life Begins, and Judicial Review, 16 TEX. J. WOMEN & L. 205, 206 (2006) (The Court has been able to avoid dealing directly with [the] question of [when life begins].).

4 It is not the purpose of this particular article to distinguish between concepts of life and personhood. Others have taken up the important task of exploring the nature of personhood, and thick (conscious experience/moral agency/rationality, etc.) v. thin (biological) conceptions of life. See, e.g., Helga Kuhse & Peter Singer, Individuals, Humans and Persons: The Issue of Moral Status, in EMBRYO EXPERIMENTN 65 (Peter Singer et al. eds.,1990); Berg, supra note 1, at 375-76 (citing H. TRISTRAM ENGELHARDT, JR., THE FOUNDATIONS OF BIOETHICS 104 (1986)); Caitlin E. Borgmann, The Meaning of Life: Belief and Reason in the Abortion Debate, 18 COLUM. J. GENDER & L. 551 (2008) [hereinafter Borgmann, Meaning of Life]; Khiara M. Bridges, A Reflection on Personhood and Life, 81 MISS. L.J. SUPRA 91 (2011); Khiara M. Bridges, Life in the Balance: Judicial Review of Abortion Regulations, 46 U.C. DAVIS L. REV. 1285 (2013). While there is certainly more to be said on these topics, the point of this project is to explore the implications of adopting a certain thin, biological conception of life and personhood as it relates to the potential for legal restrictions on reproductive choice.

5 Interestingly, in the Supreme Court's most recent abortion decision, it went as far as to say that by common understanding and scientific terminology, a fetus is a living organism while within the womb, whether or not it is viable outside the womb. Gonzales v. Carhart, 550 U.S. 124, 147 (2007). While the Court was willing to say that the fetus is at least a living organism, it was apparently not comfortable defining the fetus as a human life or legal person entitled to the rights and protections associated therewith. See also Lisa McLennan Brown, Feminist Theory and the Erosion of Women's Reproductive Rights: The Implications of Fetal Personhood Laws and In Vitro Fertilization, 13 AM. U. J. GENDER SOC. POLY & L. 87, 91 (2005) (noting that Roe's failure to define clearly what rights to personhood a fetus may hold has allowed states to undermine the Supreme Court's holdings).

6 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 979 (1992) (Scalia, J., dissenting).

7 Borgmann, Meaning of Life, supra note 4, at 581; Jack M. Balkin, How New Genetic Technologies Will Transform Roe v. Wade, 56 EMORY L.J. 843, 846 (2007). For arguments that abortion would be permissible even if a fetus is considered a person, see, e.g., Judith Jarvis Thomson, A Defense of Abortion, 1 PHIL. & PUB. AFF. 47 (1971); Eileen L. McDonagh, My Body, My Consent: Securing the Constitutional Right to Abortion Funding, 62 ALB. L. REV. 1057 (1999); Donald H. Regan, Rewriting Roe v. Wade, 77 MICH. L. REV. 1569 (1979); Robin West, Liberalism and Abortion, 87 GEO. L.J. 2117 (1999). In addition, not all persons are entitled to the same legal rights. Children have fewer rights than adults, and indeed, the law already recognizes different definitions of persons for different contexts, as when fetuses are considered persons under certain criminal or tort statutes. Berg, supra note 1, at 373.

8 See Sanctity of Human Life Act, H.R. 23, 113th Cong. (2013).

9 See infra Part II.

10 See infra Parts III & IV.

11 410 U.S. 113 (1973).

12 See, e.g., Stenberg v. Carhart, 530 U.S. 914 (2000); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992); Planned Parenthood v. Danforth, 428 U.S. 52 (1976).

13 See generally Carter J. Dillard, Rethinking the Procreative Right, 10 YALE HUM. RTS. & DEV. L.J. 1 (2007); John A. Robertson, Assisting Reproduction, Choosing Genes, and the Scope of Reproductive Freedom, 76 GEO. WASH. L. REV. 1490 (2008) (examining the source of this right and its limits).

14 See, e.g., Carey v. Population Servs. Intl, 431 U.S. 679 (1977); Eisenstadt v. Baird, 405 U.S. 438 (1972); Griswold v. Connecticut, 381 U.S. 479 (1965).

15 See I. Glenn Cohen, The Constitution and the Rights Not to Procreate, 60 STAN. L. REV. 1135, 1167-72 (2008).

16 Note, Assessing the Viability of a Substantive Due Process Right to In Vitro Fertilization, 118 HARV. L. REV. 2792, 2793 (2005) (citing John A. Robertson, Procreative Liberty in the Era of Genomics, 29 AM. J.L. & MED. 439, 453 (2003) (The Supreme Court has never directly confronted the issue of whether access to [in vitro fertilization] should be considered a constitutionally protected fundamental right.)).

17 Nadia Kounang, Could Personhood Bills Outlaw IVF?, CNN (Aug. 30, 2012), http://www.cnn.com/2012/08/30/health/ivf-outlawed/index.html?hpt=he_t4. While Mitt Romney and Paul Ryan were not elected on November 6, 2012, Paul Ryan was reelected to his congressional seat, and commentators suggest that his political career will continue to advance. See, e.g., Samuel P. Jacobs, Despite Loss, Paul Ryan Has Bright Future, REUTERS (Nov. 6, 2012), http://news.msn.com/politics/despite-loss-paul-ryan-has-bright-future.

18 One opponent of the initiatives in Colorado recalled the resounding defeat of [the 2008] measure, and suggested that it was a non-starter [in Colorado]. Electa Draper, Personhood Push Rejected, DENVER POST, Nov. 5, 2008, http://www.denverpost.com/nationalpolitics/ci_10900171.

19 The substantive text of the amendments proposed in Colorado in 2008 and 2010, and proposed in Mississippi in 2011, contained twenty words or less. See infra Part II. The revised language proposed in Colorado for the 2012 election cycle was over 200 words long. Colo. Initiative 46 (2011) (proposed COLO. CONST. art. II, 32), available at http://www.sos.state.co.us/pubs/elections/Initiatives/titleBoard/filings/2011-2012/46Final.pdf [hereinafter Appendix I] (the proposal did not receive the requisite number of signatures to get on the 2012 ballot). For the full text of the 2012 Colorado proposal, see infra Appendix I. Colorado Personhood Amendment Falls Short of Required Signatures to Make Ballot, HUFFINGTON POST (Aug. 30, 2012), http://www.huffingtonpost.com/2012/08/29/colorado-personhood-amend_n_1840602.html. Similar language was put forward recently in Arkansas, but the Attorney General of Arkansas rejected the proposal. See Ark. Atty Gen. Op. No. 2012-02 (2012), available at http://ag.arkansas.gov/opinions/docs/2012-002.pdf.

20 See Personhood Bills and Ballot Initiatives, RESOLVE: NATL INFERTILITY ASSN, http://www.resolve.org/get-involved/personhood-bills-and-ballot-initiatives.html (last visited Oct. 16, 2013). Further, as the political atmosphere changes, Congress may also revisit the Sanctity of Human Life Act.

21 Laura Bassett, North Dakota Personhood Measure Passes State Senate, HUFFINGTON POST (Feb. 8, 2013), http://www.huffingtonpost.com/2013/02/07/north-dakota-personhood_n_2640380.html [hereinafter Bassett, Senate]; Laura Bassett, North Dakota Personhood Measure Passes State House, HUFFINGTON POST (Mar. 22, 2013), http://www.huffingtonpost.com/2013/03/22/north-dakota-personhood_n_2934503.html [hereinafter Bassett, House].

22 The language used in the Sanctity of Human Life Act is similar to early iterations of state personhood proposals, and it thus raises the same issues regarding reproductive choice as those earlier measures. See infra Parts III & IV. See generally Sanctity of Human Life Act, H.R. 23, 113th Cong. (2013).

23 Jonathan F. Will, Beyond Abortion: Pre-Embryonic Personhood and the Constitutionality of Restrictions on Reproductive Choice (2013) (unpublished manuscript) (on file with author).

24 See Erik Eckholm, Push for Personhood Amendment Represents New Tack in Abortion Fight, N.Y. TIMES, Oct. 25, 2011, http://www.nytimes.com/2011/10/26/us/politics/personhood-amendments-would-ban-nearly-all-abortions.html?pagewanted=all (suggesting the proposed Personhood Amendment would ban not only most abortions, but also some birth control methods, including IUDs and morning-after pills).

25 Roe v. Wade, 410 U.S. 113, 169-70 (1973).

26 See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992); H.L. v. Matheson, 450 U.S. 398 (1981); Planned Parenthood v. Danforth, 428 U.S. 52 (1976).

27 Casey, 505 U.S. at 872-75 (finding that in the past the Court had been too quick to strike down state restrictions using strict scrutiny analysis and substituting that analysis with the undue burden standard moving forward).

28 Excluded from this discussion are state statutes proposed either by citizens or the legislature with language explicitly attempting to restrict abortion. For instance, unsuccessful attempts were made in Oklahoma and Wyoming in the early 1990s to prohibit abortion except in the narrowest of circumstances. See Molly E. Carter, Note, Regulating Abortion Through Direct Democracy: The Liberty of All Versus the Moral Code of a Majority, 91 B.U. L. REV. 305, 307 (2011) (citing In re Initiative Petition No. 349, 838 P.2d 1, 3 (Okla. 1992) and Wyo. Natl Abortion Rights Action League v. Karpan, 881 P.2d 281, 289 (Wyo. 1994)). A similar effort failed in South Dakota in 2006. See Borgmann, Meaning of Life, supra note 4, at 560. Also excluded from this discussion are statutes contingently enacted by certain states to ban abortion that would take effect if the Court overturns Roe. Id. at 560-61 n.50.

29 See What is Personhood?, PERSONHOOD USA, http://www.personhoodusa.com/about-us/what-is-personhood (last visited Nov. 1, 2013) (indicating that personhood holds the key to filling the Blackmun Hole).

30 Roe, 410 U.S. at 156-57. But cf. Thomson, supra note 7; Regan, supra note 7; West, supra note 7; and McDonagh, supra note 7 (arguing that abortion would be permissible even if a fetus is considered a person). Even a strong personhood proponent acknowledges in his Doctor of Juridical Science dissertation that Justice Blackmun was likely too quick in his assessment. See Charles L. Lugosi, Conforming to the Rule of Law: When Person and Human Being Finally Mean the Same Thing in Fourteenth Amendment Jurisprudence, 22 ISSUES L. & MED. 119, 289 (2006) (stating that Blackmun may have been premature in suggesting the case for abortion collapses once the unborn human being attains constitutional personhood, if credence is given to emergent new views that justify abortion of constitutional persons).

31 See About Us, PERSONHOOD USA, http://www.personhoodusa.com/about-us (last visited Oct. 31, 2013) [hereinafter About Personhood] (stating that Personhood USA intends to build the support of at least two thirds of the states in an effort to reaffirm personhood within the U.S. Constitution).

32 Professor Borgmann illustrates the point this way: a state could define a cow as a person under state law. In such a case, the [United States Supreme] Court would still have to answer whether this recognition violated the constitutional rights of anyone recognized as a person under the [F]ederal Constitution. Borgmann, Meaning of Life, supra note 4, at 576 n.118. In other words, personhood initiatives themselves would not necessarily outlaw abortion. Unless Roe is overturned, the Court would have to consider the extent to which recognition of preborn personhood restricts Roe's acknowledgment of women's constitutional right to choose to have an abortion. See also Carter, supra note 28, at 307 (discussing the appropriateness of using the democratic process to resolve the abortion debate, and citing In re Initiative Petition No. 349, 838 P.2d 1, 11 (Okla. 1992) for the proposition that the initiative process was never intended to be a vehicle for amending the United States Constitutionnor can it serve that function in our system of government).

33 What is Personhood, supra note 29 (stating that to be a person is to be protected by a series of God-given rights and constitutional guarantees such as life, liberty, and the pursuit of happiness. This terrifies the pro-abortion foes They know that if we clearly define the preborn baby as a person, they will have the same right to life as all Americans do.).

34 The Supreme Court of Oklahoma recently vetoed personhood language similar to that which was proposed in Colorado in 2012. See Randy Krehbiel, Group Requests Personhood Appeal from U.S. Supreme Court, TULSA WORLD, July 31, 2012, http://www.tulsaworld.com/site/printerfriendlystory.aspx?articleid=20120731_16_a9_clrdae519381 (expressing Personhood USA's hope that the United States Supreme Court will use the dispute surrounding Oklahoma's proposed personhood amendment as an opportunity to overturn Casey [and thereby Roe]). The United States Supreme Court has since denied certiorari in the case. In re Initiative No. 395, State Question No. 761, 286 P.3d 637 (Okla. 2012), cert. denied, Personhood Okla. v. Barber, 133 S. Ct. 528 (2012).

35 Over twenty years ago, a statute regulating abortions was introduced in Missouri that included a preamble stating that [t]he life of each human being begins at conception, and that unborn children have protectable interests in life, health, and well-being. Webster v. Reprod. Health Servs., 492 U.S. 490, 501 (1988) (quoting MO. REV. STAT. 1.205.1(1)-(2) (1986)). But unlike modern personhood proposals, the Missouri statute expressly subordinates itself to Supreme Court precedent, including Roe, and because the statute had not been used to restrict women's rights in violation of Roe, when the statute was challenged, the Court determined that it did not have to pass upon the constitutionality of the preamble. Webster, 492 U.S. at 506-07.

36 Adam Cayton-Holland, Meet Kristi Burton, The 21-Year-Old Pro-Lifer Behind The Personhood Amendment, WESTWORD NEWS, Sept. 25, 2008, http://www.westword.com/2008-09-25/news/meet-kristi-burton-the-22-year-old-pro-lifer-behind-the-personhood-amendment/.

37 Leslie Jorgensen, Personhood Amendment Revised and Revived, COLORADO STATESMAN, July 3, 2009, http://www.coloradostatesman.com/content/991130-personhood-amendment-revised-and-revived.

38 See supra note 19; see infra Appendix I. This discussion is focused on efforts by states to avoid specifically mentioning abortion by defining the term person to include the preborn through statute or constitutional amendment.

39 For the relevant text of Missouri's preamble, see supra note 35.

40 See Colo. Initiative 36 (2008) (proposed COLO. CONST. art II, 23), available at http://www.sos.state.co.us/pubs/elections/Initiatives/titleBoard/filings/2007-2008/Final36-0708.pdf.

41 Abigail Pesta, Behind Personhood Leader Keith Mason's Anti-Abortion Crusade, NEWSWEEK (June 25, 2012), http://mag.newsweek.com/2012/06/24/personhood-usa-s-keith-mason-eyes-election-day-2012.html.

42 See, e.g., COLO. PERSONHOOD COALITION, http://personhoodco.com (last visited Oct. 20, 2013); PERSONHOOD FLA., http://personhoodfl.com (last visited Oct. 20, 2013); PERSONHOOD MISS., http://www.personhoodmississippi.com (last visited Oct. 20, 2013); PERSONHOOD N.D., http://personhoodnorthdakota.com (last visited Oct. 20, 2013); PERSONHOOD OKLA., http://personhoodoklahoma.com/news (last visited Oct. 20, 2013); PERSONHOOD WIS., http://www.personhoodwisconsin.com (last visited Oct. 20, 2013).

43 See About Personhood, supra note 31.

44 Id.

45 See, e.g., DANIEL C. BECKER, PERSONHOOD: A PRAGMATIC GUIDE TO PROLIFE VICTORY IN THE 21ST CENTURY AND THE RETURN TO FIRST PRINCIPLES IN POLITICS (2011).

46 About Personhood, supra note 31.

47 See supra note 4 and infra note 178.

48 E.g., Jonathan Will et al., When Potential Does Not Matter: What Developments in Cellular Biology Tell Us About the Concept of Legal Personhood, 13 AM. J. BIOETHICS 38, 39 (2013) (citing generally to PETER SINGER, ANIMAL LIBERATION: A NEW ETHICS FOR OUR TREATMENT OF ANIMALS (1975)). Under this view, the belief that human life should be protected because it is innately valuable or sacred just in itself is detached from any requirement that the life in question has interests of its own. RONALD DWORKIN, LIFE's DOMINION 11-13 (1993).

49 See infra Appendix I.

50 Sanctity of Human Life Act, H.R. 23, 113th Cong. 3(3) (Jan. 2013).

51 See infra notes 173-189 and accompanying text (discussing the biology of early human development). The argument generally raised in support of this position is that once the egg and sperm have united, a unique genetic human being exists. CYNTHIA B. COHEN, RENEWING THE STUFF OF LIFE: STEM CELLS, ETHICS, AND PUBLIC POLICY 61-67 (2007) (identifying and critiquing this position).

52 COHEN, supra note 51, at 68.

53 David F. Forte, Life, Heartbeat, Birth: A Medical Basis for Reform, 74 OHIO ST. L.J. 121, 140-43 (2013). The heart may begin to beat as early as twenty-two days after fertilization. Kirsten Rabe Smolensky, Defining Life from the Perspective of Death: An Introduction to the Forced Symmetry Approach, 2006 U. CHI. LEGAL F. 41, 81 n.200 (citing WILLIAM J. LARSEN, HUMAN EMBRYOLOGY 166 (2001)).

54 Smolensky, supra note 53, at 69-70.

55 Pre-embryo will be the term used throughout this paper to refer to the fertilized ovum from the time the sperm penetrates the egg until roughly two weeks later when the primitive streak develops and/or implantation is complete. See Davis v. Davis, 842 S.W.2d 588, 592-94 (Tenn. 1992) (detailing scientific justification for distinguishing between the terms embryo and pre-embryo). Not all commentators support making this terminological distinction. See, e.g., Louis M. Guenin, On Classifying the Developing Organism, 36 CONN. L. REV. 1115 (2004) (arguing that these distinctions do not add value to moral discussions regarding such things as embryonic stem cell research). Cf. Ann A. Kiessling, What is an Embryo?, 36 CONN. L. REV. 1051 (2004) (arguing that use of the technical terms informs our understanding of the morality of these activities).

56 See, e.g., COHEN, supra note 51, at 73-78; Marco Stier & Bettina Schoene-Seifert, The Argument from Potentiality in the Embryo Protection Debate: Finally Depotentialized?, 13 AM. J. BIOETHICS 19 (2013) (identifying and critiquing this position); Will et al., supra note 48 (discussing arguments from potentiality and how any determination of when there is sufficient potential to warrant legal protection is subject to a charge of arbitrariness).

57 See I. Glenn Cohen & Sadath Sayeed, Fetal Pain, Abortion, Viability, and the Constitution, 39 J.L. MED. & ETHICS 235, 240 (2011) (identifying and challenging the argument that the capacity to feel pain is itself a criterion of constitutional personhood that could be raised in defense of Nebraska's statute outlawing abortion at twenty-weeks gestation).

58 COHEN, supra note 51, at 81-83 (identifying and critiquing this position). Peter Singer is well known for his support of this position, which is willing to assign personhood to certain high-functioning, non-human species while withholding the designation from certain low-functioning humans. Id. (citing generally to PETER SINGER, PRACTICAL ETHICS (1993)). See also John A. Robertson, In the Beginning: The Legal Status of Early Embryos, 76 VA. L. REV. 437, 444-46 (1990) (noting the difference between the human species approach and the capacity approach). Proponents of the Personhood Movement obviously reject any notion that sentience or conscious experience is a prerequisite to attaching moral worth and full legal protection to the human life in question.

59 Roe v. Wade, 410 U.S. 113, 163 (1973).

60 Berg, supra note 1, at 375-79.

61 Id. at 376; cf. DWORKIN, supra note 48, at 11-13 (describing the detached objection to abortion, which is a claim against abortion based on the belief that human life has intrinsic value regardless of whether the human has its own interests).

62 Berg, supra note 1, at 376. It is on this point that Personhood proponents would surely disagree.

63 Id. at 378.

64 Id. at 387.

65 Gonzales v. Carhart, 550 U.S. 124, 157 (2007).

66 Berg, supra note 1, at 391. John Robertson has argued that pre-embryos are owed special (though not full) protection based on their potential to become human, and because they are symbols of human life. Robertson, supra note 58, at 446-48.

67 See supra notes 46-49 and accompanying text.

68 Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 282 (1990).

69 Id. at 344 (Stevens, J., dissenting).

70 See infra Parts III & IV for the implications of such a framework.

71 Colo. Initiative 25 (2010) (proposed COLO. CONST. art II, 23), available at http://www.sos.state.co.us/pubs//elections/Initiatives/titleBoard/filings/2009-2010/25Final.pdf.

72 Compare id. with Colo. Initiative 36 (2008) (proposed COLO. CONST. art II, 23), available at http://www.sos.state.co.us/pubs/elections/Initiatives/titleBoard/filings/2007-2008/Final36-0708.pdf.

73 Colo. Initiative 25 (proposed COLO. CONST. art II, 23).

74 Jorgenson, supra note 37. See also Dianne N. Irving, Problems with Colorado's Personhood Amendment: The Phrase, From the Moment of Fertilization, LIFEISSUES.NET (May 31, 2008), http://www.lifeissues.net/writers/irv/irv_126colorado.html (suggesting that the term fertilization would not encompass naturally occurring twinning or the use of cloning).

75 Draper, supra note 18.

76 Electa Draper, Personhood Amendment Fails by 3-1 Margin, DENVER POST, Nov. 3, 2010, http://www.denverpost.com/election2010/ci_16506253.

77 Jorgenson, supra note 37.

78 Id. Interestingly, far less money was raised in campaign efforts the second time around. In 2008, supporters of Amendment 48 raised over 350,000, while opponents raised in excess of 1.8 million, but in 2010 those numbers were down to around 50,000 and 578,000, respectively. Id.; Draper, supra note 75.

79 In 2010 an Alaskan citizen proposed an amendment to existing state legislation that sought to protect the natural right to life and body of all mankind from the beginning of biological development, and stated that the natural right to life and body of the unborn child supercedes [sic] the statutory right of the mother to consent to the injury or death of her unborn child. Alaska Natural Right to Life Initiative (2011) (proposed ALASKA CONST. art I, 18.01), available at http://www.elections.alaska.gov/petitions/10NRTL/10NRTL_Sponsor_Language.pdf (last visited Oct. 31, 2013). Alaska's Lieutenant Governor rejected the initiative after determining that he was convinced the controlling case law [including Roe] made [the initiative] clearly unconstitutional, because both the Alaska and Federal Constitutions protect a woman's right to privacy. Pat Forgey, State Rejects Anti-Abortion Ballot Measure, JUNEAU EMPIRE (Jan. 12, 2011), http://juneauempire.com/stories/011211/loc_768878153..html. For a discussion of legislative efforts in Georgia, Louisiana, and North Dakota targeted more directly at reproductive technologies, see infra Part IV.

80 See, e.g., Jeffrey M. Jones, Mississippi Rates as the Most Conservative U.S. State, GALLUP POLITICS (Feb. 25, 2011), http://www.gallup.com/poll/146348/mississippi-rates-conservative-state.aspx.

81 See generally Jonathan F. Will, Measure 26: Fear Mongering, Self-Execution & Potential Implications for Birth Control, 81 MISS. L.J. SUPRA 63 (2011) [hereinafter Will, Measure 26] (describing personhood efforts in Mississippi).

82 MISS. CONST. art XV, 273.

83 Miss. Initiative 26 (2011) (proposed MISS. CONST. art. III, 33), available at http://www.sos.ms.gov/initiatives/Definition%20of%20Person-PW%20Revised.pdf.

84 Bente Birkeland, Personhood Amendment on Colorado Ballot, NPR (Oct. 29, 2008), http://www.npr.org/templates/story/story.php?storyId=96167092.

85 Steven Ertelt, Second Poll: Colorado Personhood Amendment Likely to Lose, LIVENEWS.COM (Oct. 25, 2010), http://www.lifenews.com/2010/10/25/state-5601/.

86 Peter Roff, Mississippi Voters May Change Abortion Debate, U.S. NEWS (Oct. 14, 2011), http://www.usnews.com/opinion/blogs/peter-roff/2011/10/14/mississippi-voters-may-change-abortion-debate.

87 Id.

88 MISS. SECY OF STATE, OFFICIAL TABULATION OF VOTE FOR STATEWIDE INITIATIVE MEASURE NO. 26 (2011), http://www.sos.ms.gov/links/elections/results/statewide/Statewide%20Initiative%20Measure%2026%20-%20General%20Election%202011%20Results.pdf (last visited Nov. 1, 2013). In March of 2013, Ann Reed submitted a new personhood proposal to the Mississippi Secretary of State that would amend the state constitution by adding a new section that would read: The right to life begins at conception. All human beings at every stage of development are unique, created in the image of God, and shall enjoy the inalienable right to life as persons under the law. Meet the Sponsor, PERSONHOOD MISS. (Mar. 5, 2013), http://www.personhoodmississippi.com/home-featured/meet-the-sponsor-of-the-life-at-conception-citizens-intiative/.

89 See Mississippi Anti-Abortion Personhood Amendment Fails at Ballot Box, WASH. POST, Nov. 9, 2011, http://www.washingtonpost.com/politics/mississippi-anti-abortion-personhood-amendment-fails-at-ballot-box/2011/11/09/gIQAzQl95M_story.html.

90 Burns Strider, 6 Reasons Mississippians Said No to Personhood Amendment, HUFFINGTON POST (Nov. 8, 2011), http://www.huffingtonpost.com/burns-strider/personhood-amendment-_b_1083079.html.

91 Id.

92 See I. Glenn Cohen & Jonathan F. Will, Op-Ed, Mississippi's Ambiguous Personhood Amendment, N.Y. TIMES, Oct. 31, 2011, http://www.nytimes.com/2011/10/31/opinion/mississippis-ambiguous-personhood-amendment.html.

93 See, e.g., Elizabeth Crisp, Mississippians to Vote on Personhood Initiative, USA TODAY, Nov. 6, 2011, http://www.usatoday.com/news/nation/story/2011-11-06/mississippi-voters-to-vote-on-personhood-initiative/51098740/1; Will, Measure 26, supra note 81, at 64; Jonathan F. Will, Op-Ed, Life and LawThe Commitment to Pre-Embryonic Personhood, MISS. BUS. J. (Sep. 23, 2011), http://msbusiness.com/2011/09/op-ed-life-and-law-%E2%80%94%C2%A0the-commitment-to-pre-embryonic-personhood/ [hereinafter Will, Life and Law]. In addition to writing on the topic, I organized a panel at Mississippi College School of Law to discuss the amendment and its potential implications. See infra note 118 and accompanying text.

94 Strider, supra note 90.

95 Id.

96 Id.

97 Personhood USA was adamant that Mississippians for Healthy Families was a front for Planned Parenthood and the ACLU. See Live Action and Personhood USA Release New Sting Operation in Mississippi Before Personhood Vote, PRWEB (Oct. 31, 2011), http://www.prweb.com/releases/2011/10/prweb8924956.htm.

98 See generally PARENTS AGAINST MS 26, http://parentsagainstms26.com (last visited Nov. 1, 2013).

99 Strider, supra note 90.

100 Keith Ashley, New Poll Reveals Real Reason Behind Mississippi Personhood Loss, PERSONHOOD USA (Nov. 22, 2011), http://cm.personhoodusa.com/press-release/new-poll-reveals-real-reason-behind-mississippi-personhood-loss.

101 Id.

102 Id.

103 Id.

104 Id.

105 Id.

106 See, e.g., Electa Draper, Personhood USA Again Pushes for Right-to-Life Amendment to Colorado Constitution, DENVER POST, Nov. 22, 2011, http://www.denverpost.com/news/ci_19387552 (noting that similar efforts would be pursued in Oregon and Montana); Stephanie Samuel, New Colo. Personhood Amendment Features New, Improved Language, CHRISTIAN POST, Nov. 22, 2011, http://www.christianpost.com/news/new-colo-personhood-amendment-features-new-improved-language-62627/.

107 Samuel, supra note 106.

108 See infra Appendix I for the text of the new language that was proposed in Colorado. Part III briefly outlines the central debates in Mississippi, and also introduces the revisions made to the personhood language in response thereto. Part IV then discusses in detail the revisions pertaining to contraception and IVF, and why those revisions do not adequately address the primary concerns raised regarding reproductive choice.

109 Samuel, supra note 106.

110 See generally Cohen & Will, supra note 92; Will, Measure 26, supra note 81; Will, Life and Law, supra note 93 (discussing these questions). The University of Mississippi School of Law published a useful symposium related to Measure 26. Mississippi Personhood and Initiative 26 Symposium, 81 MISS. L.J. SUPRA i (2011), available at http://mississippilawjournal.org/category/volume-81/supra-volume-81/.

111 See Cohen & Will, supra note 92.

112 Id.

113 Will, Measure 26, supra note 81, at 70-74; see also Deborah Bell, Disputes Over Frozen Embryos, 81 MISS. L.J. SUPRA 105, 113 (2011) (suggesting that courts, when confronted with disputes over dispositions of embryos, would be unlikely to ignore the strong statement of policy contained in Measure 26 when determining how to apply existing law).

114 See Christopher R. Green, A Textual Analysis of the Possible Impact of Measure 26 on the Mississippi Bill of Rights, 81 MISS. L.J. SUPRA 39, 41 (2011) (considering whether Measure 26 could have outlawed abortion in Mississippi on its own).

115 See Cohen & Will, supra note 92.

116 Id.

117 See Caitlin E. Borgmann, What the Mississippi Personhood Amendment Tells Us About Life, 81 MISS. L.J. SUPRA 115, 117 (2011); see also Memorandum from the Liberty Counsel to the Personhood Amendment Physicians Working Grp. & Other Interested Parties 1 (Sep. 17, 2011), http://yeson26.net/media/2455/personhoodphysiciansworkinggroupcivillawmemo.pdf.

118 Stephen Crampton & Rebecca Kiessling, Address at the Mississippi College School of Law Symposium: Amendment 26Exploring the Implications of Mississippi's Personhood Initiative (Oct. 25, 2011). For descriptions of panelists comments, see Debating Mississippi's Personhood Amendment, CBS NEWS, Oct. 26, 2011, http://www.cbsnews.com/8301-201_162-20126236/debating-mississippis-personhood-amendment/; Valerie Wells, Personhood: A Pandora's Box, JACKSON FREE PRESS, Nov. 2, 2011, http://www.jacksonfreepress.com/news/2011/nov/02/personhood-a-pandoras-box/ (describing panelists comments during the Symposium).

119 Borgmann, supra note 117, at 117.

120 See infra Appendix I.

121 Further, certain existing laws pertaining to the preborn would become redundant at best, or unconstitutional at worst. There would be no need for specific feticide statutes, because fetuses would be treated no differently (save for proposed exceptions in the personhood amendment itself) than any other person. In fact, to treat the death of a fetus differently could raise equal protection issues under the Fourteenth Amendment, just as it would if we treated the death of toddlers differently than that of teenagers or adults. It would seem to be a violation of the equal protection of the toddler if the law were written to say that the unintentional killing of a toddler is not prohibited, or that the killing of a toddler is punishable by a maximum of only two years in prison. This is not to say that the Court would be precluded from determining that a fetus is sufficiently different than a born person so as to permit different treatment.

122 Ark. Atty Gen. Op., supra note 19.

123 See generally Will, Measure 26, supra note 81.

124 See Bassett, Senate, supra note 21.

125 See S.B. 2302, 63d Legis. Assemb., 13 (N.D. 2013), available at http://www.legis.nd.gov/assembly/63-2013/documents/13-8231-02000.pdf?20130213153739.

126 Bassett, House, supra note 21. .

127 See infra Parts III & IV.

128 See infra Part IV.

129 See Rob Mank, Doctors Call Mississippi Personhood Initiative Dangerous, CBS NEWS, Nov. 4, 2011, http://www.cbsnews.com/8301-503544_162-57318625-503544/doctors-call-mississippi-personhood-initiative-dangerous/ (discussing ectopic pregnancies (those where implantation occurs outside the uterus), and molar pregnancies (where the fertilized egg becomes an abnormal growth instead of a fetus), each of which will not lead to successful pregnancies, but can cause the woman to bleed to death or suffer other dire consequences).

130 Laura Bassett, Mississippi Personhood Law Could Cause Legal Mayhem, Experts Warn, HUFFINGTON POST (Nov. 7, 2011), http://www.huffingtonpost.com/2011/11/07/mississippi-personhood-la_n_1079710.html.

131 Denise Grady, Medical Nuances Drove No Vote in Mississippi, N.Y. TIMES, Nov. 14, 2011, http://www.nytimes.com/2011/11/15/health/policy/no-vote-in-mississippi-hinged-on-issues-beyond-abortion.html?pagewanted=all.

132 Id.

133 Id.

134 MISS. CODE ANN. 97-3-15 (West 2011).

135 Id. 97-3-17.

136 See Geroge S. Whitten, Jr. & Jameson Taylor, Personhood Amendment Will Not Change Legal Safeguards for Physicians Providing Necessary Treatment to Pregnant Patients, MISS. CTR. FOR PUB. POLY, http://www.mspolicy.com/downloads/Initiative26Analysis.pdf (last visited Oct. 1, 2013).

137 See Vacco v. Quill, 521 U.S. 793, 808 n.11 (1997) (noting that informed consent and the principle of double effect could be utilized by a state to permit palliative carespecifically referencing terminal sedationwhich may have the foreseen but unintended double effect of hastening the patient's death).

138 Memorandum from Liberty Counsel, supra note 117, at 5. For more on IVF see infra Parts III and IV.

139 See infra Appendix I.

140 Intent is not defined. It may be that the amendment itself solely implicates situations where there is a determination to kill (specific intent), but in the criminal context in particular, general intent can take the form of recklessness (involving actual awareness of a risk and the culpable taking of that risk) or negligence (involving blameworthy inadvertence). BLACK's LAW DICTIONARY 881-82 (9th ed. 2009). This is important given our awareness of the risks associated with taking certain forms of birth control or undertaking certain procedures in IVF. See infra Part IV. Even if the amendment itself is considered not to immediately impact certain activities or circumstances (due to a lack of specific intent) it at least creates a framework in which subsequent restrictions could be enacted by proponents wishing to remain consistent with the personhood position. See infra notes 151-57 and accompanying text.

141 See infra Appendix I.

142 See id.

143 Grady, supra note 131. This issue received national attention recently when a pregnant teenager with leukemia in the Dominican Republic died after being denied chemotherapy. See, e.g., Raphael Romo, Dominican Republic Abortion Ban Stops Treatment for Pregnant Teen with Cancer, CNN (Jul. 25, 2012), http://www.cnn.com/2012/07/25/world/americas/dominican-republic-abortion-teen/index.html.

144 See Whitten & Taylor, supra note 136.

145 Will, Life and Law, supra note 93.

146 Grady, supra note 131.

147 See Ashley, supra note 100.

148 See infra Appendix I.

149 See Elizabeth Spahn & Barbara Andrade, Mis-Conceptions: The Moment of Conception in Religion, Science, and Law, 32 U.S.F. L. REV. 261, 294 n.205 (1998).

150 Michael J. Sandel, Embryo Ethics: The Moral Logic of Stem-Cell Research, 351 NEW ENG. J. MED. 207, 208 (2004). Some studies suggest that 75% to 80% of pre-embryos or embryos die in early pregnancy. COHEN, supra note 51, at 65.

151 In South Carolina a woman was sentenced to twenty years in prison after experiencing a stillbirth found to be caused by drug use. See State v. McKnight, 576 S.E.2d 168 (S.C. 2003).

152 MISS. CODE ANN. 97-3-19 (West 2011).

153 See, e.g., Ed Pilkington, Outcry in America as Pregnant Women Who Lose Babies Face Murder Charges, GUARDIAN, June 24, 2011, http://www.guardian.co.uk/world/2011/jun/24/america-pregnant-women-murder-charges. After initially accepting an interlocutory appeal to decide the issue, the Mississippi Supreme Court determined that Ms. Gibbs would have to stand trial before the Court would determine whether the law applied to pregnant women. See Gibbs v. State, No. 2010-IA-00819-SCT, Order No. 172566 (Miss. Oct. 27, 2011) (order dismissing interlocutory appeal), available at http://courts.ms.gov/Images/Orders/700_61759.pdf.

154 See Ada Calhoun, The Criminalization of Bad Mothers, N.Y. TIMES MAG. (Apr. 25, 2012), http://www.nytimes.com/2012/04/29/magazine/the-criminalization-of-bad-mothers.html?pagewanted=all (noting the relationship between chemical endangerment laws (like seen in Alabama that are used to prosecute pregnant drug users) and the Personhood Movement). The trend of criminally prosecuting pregnant women in similar circumstances is growing. See Pilkington, supra note 153. For a general discussion of the rise of criminal and civil statutes regarding harm caused to the preborn, see Brown, supra note 5, at 90-97.

155 Pilkington, supra note 153.

156 Id.

157 In a recent interview Keith Mason maintained that claims made about miscarriages by opponents are ridiculous, but went on to note that I know of cases where a woman that is addicted to crack will have her baby and the state will take the crack baby away because of child abuse and mandate the woman receive treatmentIm good with that. Pesta, supra note 41.

158 See Borgmann, supra note 117, at 117 n.13.

159 For a discussion of the potential implications for contraception and IVF, see, e.g., Grady, supra note 131; Will, Measure 26, supra note 81.

160 See, e.g., Borgmann, supra note 117, at 117; Mandi D. Campbell, Reviving a Culture of Life in America, 6 LIBERTY U. L. REV. 283, 296 (2012) (stating that in past personhood debates, pro-abortion groups and individuals told people that the personhood amendments would make birth control and in-vitro fertilization illegal and engaged in other fear-mongering tactics that scared people away from choosing life); Will, Measure 26, supra note 81, at 64.

161 See, e.g., Irin Carmon, The Next Front in the Abortion Wars: Birth Control, SALON (Oct. 26, 2011), http://www.salon.com/2011/10/26/the_next_front_in_the_abortion_wars_birth_control/.

162 See Will, Measure 26, supra note 81, at 66-70.

163 See, e.g., Carmon, supra note 161.

164 E.g., Jennifer E. Spreng, Pharmacists and the Duty to Dispense Emergency Contraceptives, 23 ISSUES L. & MED. 215, 225 (2008).

165 Morning after pill is not an entirely accurate description since emergency contraception can effectively prevent pregnancy if taken within 72 hours of unprotected sexual intercourse. Id. at 222. For a discussion of the debates regarding the mechanisms of operation of emergency contraception, see infra notes 196-205 and accompanying text.

166 See, e.g., Grady, supra note 131.

167 Id.

168 In a recent interview, Keith Mason acknowledged that the Personhood Movement seeks to regulate reproductive technology, noting that the Movement has exposed some of the dark secrets of the IVF industry. John Keilman & Melissa Jenco, Personhood Becomes Ground for Debate in Naperville, CHI. TRIB., Apr. 5, 2012, http://articles.chicagotribune.com/2012-04-05/news/ct-met-naperville-fertilty-clinic-follo-20120405_1_ralph-kazer-ivf-fertilization.

169 Carmon, supra note 161.

170 Id.

171 See infra Appendix I.

172 Will, Measure 26, supra note 81, at 63.

173 See infra Appendix I.

174 See, e.g., Cohen & Will, supra note 92 (citing Philip G. Peters, Jr., The Ambiguous Meaning of Human Conception, 40 U.C. DAVIS L. REV. 199, 200-04 (2009)).

175 What is Personhood, supra note 29 (citing KEITH L. MOORE, THE DEVELOPING HUMAN: CLINICALLY ORIENTED EMBRYOLOGY 2, 16 (7th ed. 2003)).

176 Peters, supra note 174, at 205-15.

177 Id.

178 Id. at 206 n.21. See supra notes 44-47 and accompanying text (discussing alternative moments when membership in the human species could be designated to begin). Further insight can be garnered from the Federal Sanctity of Human Life Act, which was re-introduced in January 2013. See Sanctity of Human Life Act, H.R. 23, 113th Cong. (2013) (declaring that the right to life guaranteed by the Constitution begins with fertilization, cloning, or its functional equivalent, where fertilization is further defined to mean the process of human spermatozoan penetrating the cell membrane of a human oocyte to create a human zygote, a one-celled human embryo, which is a new unique human being). While this definition does not reference our more nuanced understanding of reproductive physiology, by attaching personhood prior to the first cellular cleavage, it would place the person-defining moment within the first twenty-four hours after the sperm penetrates the egg. Peters, supra note 174, at 210 n.36.

179 See supra Part II.

180 The process of cloning, or somatic cell nuclear transfer, involves removing the nucleus of an egg cell, replacing it with the genetic material of an adult cell, and then stimulating the re-nucleated cells to divide. Elizabeth Price Foley, Human Cloning and the Right to Reproduce, 65 ALB. L. REV. 625, 626 (2002).

181 See supra notes 2, 41-51 and accompanying text.

182 See, e.g., Will et al., supra note 48; R. Albert Mohler, Jr., Were All Harry Blackmun NowThe Lessons of Mississippi, CHRISTIAN POST (Nov. 19, 2011), http://www.christianpost.com/news/were-all-harry-blackmun-now-the-lessons-of-mississippi-62422/ (stating that unless the unborn child is recognized as a person at every point in its development, we are just negotiating our own arbitrary definition of human personhood and human life).

183 See infra Appendix I.

184 Peters, supra note 174, at 212.

185 See id. at 227.

186 Id. at 212-13.

187 Id. at 218.

188 See, e.g., id. at 218.; Will et al., supra note 48, at 39-40; COHEN, supra note 51, at 66-68.

189 Peters, supra note 174, at 205-212. Arguably, the process of development begins as soon as the sperm attaches to the egg, since structural changes occur to both the sperm and egg to allow penetration and subsequent genomic alignment. Id. The Catholic Church appears to have settled on the fusion of the male and female gametes as the beginning of human life, which occurs many hours after the sperm penetrates the egg. Id. at 225. In the context of cloning, clinicians would have to stimulate the re-nucleated cell to initiate cellular division, whereas this process begins naturally when the sperm penetrates the egg. Id. at 205-212.

190 Will, Measure 26, supra note 81, at 67.

191 Id. at 66 n.16.

192 Thaddeus Mason Pope, Legal Briefing: Conscience Clauses and Conscientious Refusal, 21 J. CLINICAL ETHICS, 163, 166 (2010).

193 A 2010 study performed by the Centers for Disease Control and Prevention (CDC) showed that through 2008, hormonal contraceptives (including the pill, patches, implants, injections, and vaginal rings), were by far the most common form of non-permanent birth control used by women, with the pill clearly being the most dominant. Ctr. for Disease Control & Prevention, Use of Contraception in the United States: 1982-2008, 23 VITAL & HEALTH STATS. 29 (Aug. 2010), http://www.cdc.gov/nchs/data/series/sr_23/sr23_029.pdf; see also CONTRACEPTIVE USE IN THE UNITED STATES, GUTTMACHER INST. (Aug. 2013), available at http://www.guttmacher.org/pubs/fb_contr_use.html.

194 See infra Appendix I.

195 Pesta, supra note 41. The enabling legislation that was to accompany the recently proposed constitutional amendment in North Dakota similarly would have outlawed birth control that can be clinically proven to kill a person, and the state department of health was tasked with providing a list of any such forms of contraception. See S.B. 2302, 63d Legis. Assemb., 2(2)(a) (N.D. 2013), available at http://www.legis.nd.gov/assembly/63-2013/documents/13-8231-02000.pdf?20130213153739. But given the current status of our clinical understanding of the post-fertilization effects of certain forms of birth control, it is unclear what that list might have looked like. See infra notes 197-204 and accompanying text.

196 See, e.g., Rachel White-Domain, Making Rules and Unmaking Choice: Federal Conscience Clauses, the Provider Conscience Regulation and the War on Reproductive Freedom, 59 DEPAUL L. REV. 1249, 1260 (2010).

197 There are different types of hormonal contraception and emergency contraception. The most common types of hormonal contraception are combined pills (COCs, which contain both estrogen and progesterone), and progesterone-only pills (POPs). See, e.g., Walter L. Larimore, M.D., Growing Debate About the Abortifacient Effect of the Birth Control Pill and the Principle of Double Effect, 16 ETHICS & MED. 23 (2000), available at http://www.epm.org/resources/2004/Oct/01/growing-debate-about-abortifacient-effect-birth-co/. Emergency contraception may involve the Yuzpe method (taking larger doses of daily oral contraceptive pills), or Plan B (a regimen of two doses of levonorgestrel taken twelve hours apart). Spreng, supra note 164, at 224-26. In addition, the FDA recently approved Plan B One-Step, which involves a single dose of lovenorgestrel, and ulipristal acetate-based EC (ella), which is effective up to 120 hours after intercourse. MARK R. WICCLAIR, CONSCIENTIOUS OBJECTION IN HEALTH CARE 22 (2011).

198 Walter L. Larimore, M.D. & Joseph B. Stanford, M.D., Postfertilization Effects of Oral Contraceptives and Their Relationship to Informed Consent, 9 ARCH. FAM. MED. 126, 127-29 (2000).

199 Id.

200 Will, Measure 26, supra note 81, at 69. Dr. Larimore notes that POPs and Norplant (a subcutaneously implanted progesterone rod) are more likely to be effective post-fertilization than COCs. Larimore, supra note 197. Indeed, some opponents to the hostile endometrium theory argue that the level of progesterone in COCs is too low to have the post-fertilization impact suggested, particularly given the changed hormonal environment that would exist if break-through ovulation should occur. Id.

201 See Spreng, supra note 164, at 223; Michelle Castillo, Investigation Reveals Morning-After Pill May Not Prevent Implantation, CBS NEWS (June 7, 2012), http://www.cbsnews.com/8301-504763_162-57448998-10391704/investigation-reveals-morning-after-pill-may-not-prevent-implantation/. Drs. Larimore and Stanford, on the other hand, cite to studies showing that hormonal contraception can alter the endometrium in a fashion that decreases the likelihood of successful intra-uterine implantation. Larimore & Stanford, supra note 198, at 128-29 (noting that hormonal contraceptives reduce the thickness of the endometrium, alter integrin expression, and also potentially increase the risk of extra-uterine implantation, such as ectopic pregnancies). Several studies have indicated that the risk of ectopic pregnancy is higher for women using POPs. Id. at 129. Dr. Larimore acknowledges, however, that there are opponents to the hostile endometrium theory, and he admits that little direct evidence exists for the true post-fertilization impacts of hormonal contraception. Larimore, supra note 197.

202 See Bill Fortenberry, Personhood and the Pill, PERSONHOOD INITIATIVE, available at http://www.personhoodinitiative.com/personhood-and-the-pill.html (last visited Oct. 25, 2013).

203 Id.

204 Id. Note that this is different from the question of which mechanism of operation makes the birth control method effective in preventing pregnancy. Here we are talking about the failure of the birth control to prevent pregnancy (successful implantation), yet nonetheless causing a subsequent miscarriage. It is the increased risk of miscarriage that Fortenberry is identifying as being problematic. In other words, when the pill is successful (operating pre-fertilization), it may not be problematic under a personhood framework; however, it would still be problematic given the risk that the pill will fail to prevent pregnancy, yet nonetheless lead to miscarriage. Id.

205 Id.

206 Mohler, supra note 182. One survey suggested that the majority of American Catholics disagree with the Church's prohibitions on contraception. Elizabeth Sepper, Not Only the Doctor's Dilemma: The Complexity of Conscience in Medicine, 4 FAULKNER L. REV. 385, 399-400 (2013) (citing CATHOLICS FOR CHOICE, IN GOOD CONSCIENCE: RESPECTING THE BELIEFS OF HEALTHCARE PROVIDERS AND THE NEEDS OF PATIENTS 10 (2010)).

207 For a comprehensive discussion of laws regarding freedom of conscience, see Nadia N. Sawicki, The Hollow Promise of Freedom of Conscience, 33 CARDOZO L. REV. 1389 (2012); for a discussion of the relationship between the Personhood Movement and conscience legislation, see Jonathan F. Will, Conscience Legislation, the Personhood Movement, and Access to Emergency Contraception, 4 FAULKNER L. REV. 411 (2013) [hereinafter Will, Conscience Legislation].

208 See, e.g., Sawicki, supra note 207; Will, Conscience Legislation, supra note 207.

209 White-Domain, supra note 196, at 1250 n.13 (identifying the full name of the regulation as Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law, which was located at 45 C.F.R. 88 (2008) (rescinded by Regulation for the Enforcement of Federal Health Care Provider Conscience Protection Laws, 76 Fed. Reg. 9968-02 (Feb. 23, 2011)).

210 The earliest conscience laws, like the Church Amendment, concerned abortion, and were enacted shortly after Roe v. Wade. See Pope, supra note 192, at 164.

211 Adam Sonfield, Proposed Conscience Regulation Opposed Widely as Threat to Reproductive Health and Beyond, 11 GUTTMACHER POLY REV. 4 (2008), available at http://www.guttmacher.org/pubs/gpr/11/4/gpr110417.html.

212 Regulation for the Enforcement of Federal Health Care Provider Conscience Protection Laws, 76 Fed. Reg. at 9968-02; see also Rob Stein, Obama Administration Replaces Controversial Conscience Regulation for Health Care Workers, WASH. POST, Feb. 19, 2011, available at http://www.washingtonpost.com/wp-dyn/content/article/2011/02/18/AR2011021807443.html.

213 Sepper, supra note 206, at 386 (discussing the Respect for Rights of Conscience Act, S. 1467, 112th Cong., (2011-2012), a law that would have permitted any person or entity to refuse to provide any care even if the refusal results in a person's death).

214 Pope, supra note 192, at 165.

215 Id. at 164.

216 Id. at 166.

217 See Will, Conscience Legislation, supra note 207, at 416 (citing STATE POLICIES IN BRIEF: REFUSING TO PROVIDE HEALTH SERVICES, GUTTMACHER INST. (Sept. 2013), available at http://www.guttmacher.org/statecenter/spibs/spib_RPHS.pdf (identifying the six states as Arizona, Arkansas, Georgia, Idaho, Mississippi, and South Dakota)).

218 Brittany L. Grimes, The Plan B for Plan B: The New Dual Over-the-Counter and Prescription Status of Plan B and Its Impact Upon Pharmacists, Consumers, and Conscience Clauses, 41 GA. L. REV. 1395, 1402 (2007) (citing Mary K. Collins, Conscience Clauses and Oral Contraceptives: Conscientious Objection or Calculated Obstruction?, 15 ANNALS HEALTH L. 37, 49 (2006)). In fact, the Mississippi statute permits conscientious objection by any person who furnishes, or assists in the furnishing of healthcare services, which is a term broadly defined to include patient referral, counseling, therapy, testing, diagnosis or prognosis, research, instruction, prescribing, dispensing or administering any device, drug, or medication, surgery, or any other care or treatment. See MISS. CODE ANN. 41-107-3, 41-107-5 (West 2009).

219 See Kevin Murphy, Missouri Law to Deny Birth Control Coverage Vetoed, REUTERS (Jul. 12, 2012), http://www.reuters.com/article/2012/07/12/us-usa-contraception-missouri-idUSBRE86B1B620120712.

220 Will, Conscience Legislation, supra note 207, at 412 (highlighting Professor Sepper's suggestion that a possible purpose behind conscience legislation is to make abortions, family planning, and end-of-life care more difficult to obtain, and that the true goal of such legislation is hostility to reproductive health and patients interests. Sepper, supra note 206, at 406).

221 See About Personhood, supra note 31.

222 In a subsequent paper, I will discuss the constitutionality of any proposed restriction on hormonal contraceptives, but briefly, while Supreme Court precedent establishes that a state could not outlaw all forms of contraception, it is far less clear whether certain forms of contraception could be restricted given a state's (compelling?) interest in protecting pre-embryonic persons following adoption of a personhood framework. Cohen, supra note 15, at 1167-72; Mark Strasser, The Next Battleground? Personhood, Privacy, and Assisted Reproductive Technologies, 65 OKLA. L. REV. 177, 198-99 (2013); Will, Measure 26, supra note 81, at 74.

223 See, e.g., Washington v. Glucksberg, 521 U.S. 702, 741 (1997) (Stevens, J., concurring).

224 See infra Appendix I.

225 See, e.g., Dylan P. Kletter, Negligence in the (Thin) Air: Understanding the Legal Relationship Between Outfitters and Participants in High Risk Expeditions Through Analysis of the 1996 Mount Everest Tragedy, 40 CONN. L. REV. 769, 784 (2008) (noting that a mountain climber may choose to participate in a particular climb because of the likelihood of death).

226 U.S. CENSUS BUREAU, FATAL MOTOR VEHICLE ACCIDENTSNATIONAL SUMMARY: 1990-2009, at 694 tbl.1105 (2012), available at http://www.census.gov/compendia/statab/2012/tables/12s1105.pdf.

227 The census data included a finding that 6.88 minors under the age of 15 died in vehicular accidents per 100,000 residents. Id.

228 See GUTTMACHER, supra note 193.

229 One could also argue that the high rate of natural miscarriage (leading to the death of pre-embryonic persons) should lead to restrictions on unprotected sex itself. But personhood proponents do not appear to be arguing for such restrictions, and the idea of the government regulating sexual activity itself (as opposed to the types of contraception or ART available) raises a host of constitutional problems that are beyond the scope of this project. See Lawrence v. Texas, 539 U.S. 558, 558 (2003) (finding a Texas statute that criminalized certain sexual behavior between members of the same sex to violate the Due Process Clause); see infra notes 339-52 and accompanying text for discussion of this issue in the context of IVF.

230 In Germany and Italy, for instance, regulations limit the number of pre-embryos that may be created and transferred for implantation to reduce the risk of loss in the IVF process. See infra notes 273-274 and accompanying text.

231 See infra Appendix I.

232 Even if the amendment itself does not implicate injury caused to pre-embryos, it is possible that other statutory provisions would be available to address such harms. See supra notes 151-57 and accompanying text (discussing unintentional drug-induced miscarriages).

233 Kounang, supra note 17; Pesta, supra note 41.

234 Davis v. Davis, 842 S.W.2d 588, 595 (Tenn. 1992).

235 Id. at 594-95.

236 See Bridget M. Fuselier, The Trouble With Putting All of Your Eggs in One Basket: Using a Property Rights Model to Resolve Disputes Over Cryopreserved Pre-Embryos, 14 TEX. J. C.L. & C.R. 143, 146 (2009); Jaime King, Predicting Probability: Regulating the Future of Preimplantation Genetic Screening, 8 YALE J. HEALTH POLY L. & ETHICS 283, 292-93 n.37 (2008).

237 In a subsequent paper, I will explore the constitutionality of any such restrictions. See supra note 23.

238 Fuselier, supra note 236, at 146.

239 Id.

240 Many fertility clinics do not itemize the various costs associated with an IVF cycle on their websites, but at least two clinics advertised egg retrieval costs that alone exceed 2,000. Sample IVF Costs, REPROD. HEALTH CTR. (2012), http://www.ivftucson.com/financial-information/sample-ivf-costs; Fertility, QUILLEN ETSU PHYSICIANS (2012), http://www.etsuphysicians.com/medical-services/fertility.html (select What are my costs? from the left-hand panel).

241 Fuselier, supra note 236, at 146-47.

242 Id. at 146 n.20.

243 Id. at 147. As will be discussed, research involving the cryopreservation of ova (as opposed to pre-embryos) is ongoing, and may offer an alternative that would seem more permissible under a personhood framework.

244 Id. at 144.

245 See, e.g., Meredith A. Reynolds et al., Risk of Multiple Birth Associated with In Vitro Fertilization Using Donor Eggs, 154 AM. J. EPIDEMIOLOGY 1043, 1044 (2001). This visual inspection is to be distinguished from the genetic testing associated with PGS.

246 Maureen Wood, Embryo Freezing: Is it Safe?, IVF.NET (Aug. 2, 2004), http://www.ivf.net/ivf/embryo-freezing-is-it-safe-o335.html (noting that the best pre-embryos are selected for fresh IVF cycles, as opposed to cryopreserving the best pre-embryos). Even where successful pregnancy and birth is achieved through IVF, because of a lack of studies (and the fact that symptoms may not appear for years), it is not well understood whether potential genetic abnormalities or defects may be caused by the IVF process. See Gina Kolata, Picture Emerging on Genetic Risks of IVF, N.Y. TIMES, Feb. 16, 2009, http://www.nytimes.com/2009/02/17/health/17ivf.html?_r=1&nl=8hlth&emc=hlthal. Further understanding of these issues could lead to restrictions on the practice of IVF without regard to personhood.

247 Peters, supra note 174, at 217.

248 See Fuselier, supra note 236, at 144.

249 The awkwardness of using the language of life and person in this context highlights the deficiencies associated with ignoring the biological realities of the early reproductive process previously discussed. Under Louisiana law pre-embryos are recognized as juridical persons; however, if the fertilized ovum fails to develop (other than due to cryopreservation), it is considered nonviable, and not a juridical person. LA REV. STAT. ANN. 9:129 (2008). Similarly, a statute was recently proposed in Georgia that would have identified pre-embryos as human beings, but also included the statement that a pre-embryo that fails to show any sign of life over a 36 hour period outside a state of cryopreservation shall be considered no longer living. S.B. 169, 150th Gen. Assemb. Reg. Sess. (Ga. 2009), available at http://www.legis.ga.gov/Legislation/20092010/89683.pdf (emphasis added).

250 Even a national infertility organization that opposes personhood initiatives advises those undergoing IVF to inquire as to the options available for any pre-embryos (unfit or otherwise) not transferred to the woman's uterus. One option listed is a disposal ceremony, designed to create a special moment to come to closure regarding the [pre-]embryos. After IVF: The Embryo Decision, RESOLVE: NATL INFERTILITY ASSN (2013), http://www.resolve.org/family-building-options/donor-options/after-ivf-the-embryo-decision.html.

251 About Personhood, supra note 31.

252 We might question whether attempted implantation would be appropriate in these circumstances. Under a personhood framework, this abnormal pre-embryo would possess the same legal and moral status as you or I do. If clinicians determine that this pre-embryo has a very low probability of surviving the implantation process, then what justification would there be for sending this person we are trying to protect off to near certain death? Would it not be better to cryopreserve the pre-embryo in the hopes that one day technology would improve the odds of successful implantation and pregnancy? See infra notes 339-52 and accompanying text for further discussion of the risks associated with the transfer process.

253 See, e.g., Personhood Doesn't Ban IVF, a Response to Atlee Breland, PERSONHOOD USA (2013), http://www.personhoodusa.com/blog/personhood-doesnt-ban-ivf-response-atlee-breland/.

254 See, e.g., Fuselier, supra note 236, at 147.

255 Wood, supra note 246.

256 Peters, supra note 174, at 217.

257 Fuselier, supra note 236, at 147.

258 Id.

259 Wood, supra note 246.

260 Id.

261 Whether cryopreserved persons are alive as opposed to being in some sort of limbo, or whether they are (or ought to be) entitled to the same legal rights and protections as thawed persons are also interesting questions.

262 Cynthia S. Marietta, Birth of Healthy Baby from 20-Year-Old Frozen Embryo Raises Ethical Questions, UNIV. HOUS. LAW CTR. 1, 1-2 (Jan. 2011), http://www.law.uh.edu/healthlaw/perspectives/2011/(CM)%20IVF.pdf.

263 Wood, supra note 246. See Marietta, supra note 262.

264 Wood, supra note 246. The data reported by the CDC indicate that, as a percentage of transfers resulting in live birth, fresh transfers are more successful for women under the age forty, but less successful than thawed transfers for women forty-one and older. See Assisted Reproductive Technology (ART) Report, CTRS FOR DISEASE CONTROL & PREVENTION (2010), http://apps.nccd.cdc.gov/art/Apps/NationalSummaryReport.aspx.

265 See Marietta, supra note 262, at 3-4 (explaining that the combination of freezing/thawing techniques could potentially pose medical risks to resulting children).

266 See, e.g., id. (describing recent work performed by the Jones Institute, a preeminent IVF research institute in Norfolk, Virginia, and generally noting the limited number of studies conducted regarding IVF-conceived children); see also Gina Kolata, Picture Emerging on Genetic Risks of IVF, N.Y. TIMES, Feb. 16, 2009, http://www.nytimes.com/2009/02/17/health/17ivf.html?_r=1&nl=8hlth&emc=hlthal.

267 This argument is equally applicable to any harm that might occur as a result of PGS, which is discussed below.

268 See Davis v. Davis, 842 S.W.2d 588, 594 (Tenn. 1992) (noting that after the trial judge determined that the pre-embryos should be treated as children in vitro, the judge then invoked the doctrine of parens patriae and held that it was in the best interest of the children to be born rather than destroyed); see also LA. REV. STAT. ANN. 9:131 (2012) (stating that in disputes arising between any parties regarding the in vitro fertilized ovum, the judicial standard for resolving such disputes is to be in the best interests of the in vitro fertilized ovum).

269 See infra note 299.

270 See generally I. Glenn Cohen, Regulating Reproduction: The Problem with Best Interests, 96 MINN. L. REV. 423 (2012); I. Glenn Cohen, Beyond Best Interests, 96 MINN. L. REV. 1187 (2012) (In a two-article series, Cohen arguing that the best interests standard, utilized to protect existing children, does not seem satisfying as a justification for restricting reproductive choices that might impact future children.). For instance, in arguing against potential restrictions on say the elderly having access to IVF, Professor Cohen uses Parfit's Non-Identity Problem to note that assuming the resulting child would have a life worth living, such child cannot be said to be harmed by permitting the elderly person to undergo IVF, since the alternative would be no life at all. See DEREK PARFIT, REASONS AND PERSONS 358-61 (1984). Assuming that the genetic interventions I discuss in this paper are identity-preserving, Professor Cohen's argument against the use of the best interests standard would not be implicated, since the pre-embryonic persons involved are already in existence and thus, we are not speaking about harming future persons. See infra note 299 for additional discussion of this issue.

271 Jeffrey T. Wise, Comment, Embryo Banking as a Novel Option for the Infertile? Law, Policy, and a Proposed Model Act, 8 HOUS. J. HEALTH L. & POLY 163, 181 (2007) (citing Rachel Anne Fenton, Catholic Doctrine Versus Women's Rights: The New Italian Law on Assisted Reproduction, 14 MED. L. REV. 73, 98 (2006)).

272 Id.

273 Gesetz zum Schutz von Embryonen [ESchG][The Embryo Protection Act], Dec. 13, 1990, BUNDESRAT DRUCKSACHEN [BR], 69/90 at 2746 (Ger.), translation available at http://www.auswaertiges-amt.de/cae/servlet/contentblob/480804/publicationFile/5162/EmbryoProtectionAct.pdf.

274 See, e.g., Georgia's Personhood Amendment Passes with a Super Majority, GA. RIGHT TO LIFE (Aug. 2, 2012), http://www.grtl.org/?q=node/270 ; see also Jim Galloway, A House Democrat to Sponsor Personhood Amendment, ATLANTA JOURNAL-CONSTITUTION (Nov. 15, 2011), http://blogs.ajc.com/political-insider-jim-galloway/2011/11/15/a-house-democrat-to-sponsor-personhood-amendment/.

275 Betsy McKay, In-Vitro Fertilization Limit is Sought, WALL ST. J., Mar. 3, 2009, http://online.wsj.com/article/SB123603828823714509.html.

276 S.B. 169, 150th Gen. Assemb. Reg. Sess. 19-7-64(a) (Ga. 2009), available at http://www.legis.ga.gov/Legislation/20092010/89683.pdf.

277 Id. at 19-7-66. A more recent bill that was proposed to accompany a personhood amendment in North Dakota was struck down by the State Senate that would have similarly restricted the number of embryos created to those that would be transferred in a given cycle. S.B. 2302, 63d Legis. Assemb., 7 (N.D. 2013), available at http://www.legis.nd.gov/assembly/63-2013/documents/13-8231-02000.pdf?20130213153739

278 S.B. 169, 150th Gen. Assemb. Reg. Sess. 19-7-67 (Ga. 2009), available at http://www.legis.ga.gov/Legislation/20092010/89683.pdf. At least with respect to the number of transfers permitted, the legislation is not dramatically different than the recommendations and guidelines established by the American Society of Reproductive Medicine, or current practices within IVF clinics in the United States. See infra notes 328-33 and accompanying text. This suggests an area where those in favor of IVF may find common ground with personhood proponents.

279 See, e.g., The National Infertility Association and Supporters Defeat Dangerous Georgia Bill, RESOLVE: NATL INFERTILITY ASSN (Apr. 9, 2009), http://www.resolve.org/about/resolve-the-national-infertility-association-and-supporters-defeat-dangerous-georgia-bill.html (recounting how the outrage from the family building community forced Georgia legislators to backpedal, re-write, and delete many of the provisions of the bill that would have harmed infertility patients).

280 Wise, supra note 271, at 181.

281 The version of S.B. 169 that passed in the Senate does not contain the language regarding cryopreservation or limited pre-embryo transfer. See S.B. 169, 150th Gen. Assemb. Reg. Sess. 19-7 (Ga. 2009), available at http://legiscan.com/GA/text/SB169/2009 (permitting pre-embryo cryopreservation, though limiting the ways in which pre-embryos may be created, and providing that pre-embryos may be created solely for the purposes of initiating a human pregnancy).

282 Lisa Campo-Engelstein, Insurance Coverage for Cancer Treatment-Induced Conditions: Comparing Fertility Preservation Technology and Breast Reconstructive Surgery, 61 DEPAUL L. REV. 849, 856 (2012) (noting that the American Society for Reproductive Medicine (ASRM) still considers egg cryopreservation to be experimental); see also U.B. Wennerhold et al., Children Born After Cryopreservation of Embryos or Oocytes: A Systematic Review of Outcome Data, 24 HUMAN REPROD. 2158, 2169 (2009), available at http://humrep.oxfordjournals.org/content/24/9/2158.full.pdfhtml (stating that data on children born after egg cryopreservation is sparse).

283 Fuselier, supra note 236, at 147.

284 Charles P. Kindregan, Jr., Genetically Related Children: Harvesting of Gametes from Deceased or Incompetent Persons, J. HEALTH & BIOMED. L. 147, 158 n.50 (2011) (citing Briana Rudick et al., The Status of Oocyte Cryopreservation in the United States, 94 FERTILITY & STERILITY 2642, 2642-46 (2010)).

285 PGS is used here to refer to any genetic testing of pre-embryos, though some commentators distinguish between PGS and preimplantation genetic diagnosis (PGD). See, e.g., Jaime King, Duty to the Unborn: A Response to Smolensky, 60 HASTINGS L.J. 377, 379 n.15 (2008) (using the term PGD with reference to testing for specific genetic or chromosomal diseases).

286 The use of PGS has grown significantly since its introduction in the late 1980s. King, supra note 285, at 290 n.28.

287 Peters, supra note 174, at 216.

288 Id. at 210-16.

289 For instance, Germany's Embryo Protection Act includes in its definition of embryo each totipotent cell removed from an embryo that is assumed to be able to divide and to develop into an individual under the appropriate conditions. Gesetz zum Schutz von Embryonen [ESchG][The Embryo Protection Act], Dec. 13, 1990, BUNDESRAT DRUCKSACHEN [BR], 69/90 at 2746 (Ger.), translation available at http://www.auswaertiges-amt.de/cae/servlet/contentblob/480804/publicationFile/5162/EmbryoProtectionAct.pdf.

290 King, supra note 285, at 292.

291 Id. at 291. In addition to identifying chromosomal abnormalities, PGS can be used to screen for genetic markers associated with disorders such as Tay-Sachs and Huntingtons, or for predispositions to certain cancers. Id. at 296.

292 Id. at 295-96.

293 Peters, supra note 174, at 217.

294 King, supra note 285, at 287.

295 Id. at 291-96, 303-08.

296 Id. at 292 n.37, 297. The study indicated a 37% live birth rate for IVF patients, decreasing to 25% for patients undergoing PGS. Id. at 287 n.16, 307.

297 Id. at 308.

298 Id. at 307 (noting that the extent of this risk is unknown since many of the children born after a PGS cycle are not yet through puberty).

299 For purposes of this paper I will bracket off the issue that some couples may only reproduce because of the availability of PGS, and therefore, PGS could be argued to provide the benefit of existence itself. This argument could be used by a patient only willing to parent a deaf child, which PGS makes possible through pre-embryo selection. In addition to the benefit, Parfit's Non-Identity Problem could be utilized to suggest that the decision to use PGS cannot be said to harm these resulting persons who are better off alive than not (at least assuming a life worth living). See PARFIT, supra note 270, at 358-61. But if the decision to use PGS is made after the pre-embryonic person is already in existence (for instance by a couple in the midst of using IVF), then the Non-Identity Problem would not appear to be implicated assuming we consider the genetic intervention to be identity preserving, and it is therefore possible to assess whether PGS causes or creates a risk of harm to this identified person. See I. Glenn Cohen, Intentional Diminishment, the Non-Identity Problem, and Legal Liability, 60 HASTINGS L.J. 347, 352-53 (2008); Kirsten Rabe Smolensky, Creating Children with Disabilities: Parental Tort Liability for Preimplantation Genetic Interventions, 60 HASTINGS L.J. 299, 332-33 (2008). Of course, if the genetic intervention is viewed to be identity changing, then the argument could be made that this new, post-intervention person has not been harmed, since but for the intervention she would not exist. See supra notes 268-71 and accompanying text for additional discussion of this issue.

300 See John A. Robertson, Extending Preimplantation Genetic Diagnosis: The Ethical Debate, 18 HUM. REPROD. 465, 470 (2003), available at http://humrep.oxfordjournals.org/content/18/3/465.full.pdf (explaining that controversial uses of preimplantation genetic diagnosis would increase if technology for further genetic testing was available).

301 Utilitarianism and Kantianism are two moral theories that have had profound influence on Western legal philosophy. See, e.g., JEFFRIE G. MURPHY & JULES L. COLEMAN, PHILOSOPHY OF LAW 67-98 (1990). Kant himself might dispute the personhood (or humanity) of pre-embryos given their inability to engage in rational behavior. Id. at 77.

302 PRESIDENT's COUNCIL ON BIOETHICS, THE REGULATION OF NEW BIOTECHNOLOGIES 96 (2004), http://bioethics.georgetown.edu/pcbe/reports/reproductionandresponsibility/_pcbe_final_reproduction_and_responsibility.pdf.

303 By avoiding immediate destruction these pre-embryos would stand the chance of being saved by a subsequent personhood framework that would outlaw destruction.

304 See generally Michael J. Malinowski, Choosing the Genetic Makeup of Children: Our Eugenic PastPresent, and Future?, 36 CONN. L. REV. 125 (2003) (exploring the history of eugenics and how that history should inform regulation of ART).

305 See generally Glenn L. Schattman, Lack of Benefit of Pre-Implantation Genetic Screening, 1 BIENNIAL REV. INFERTILITY 289 (2009) (explaining that PGS may reduce a woman's chance of having a child).

306 See Benjamin B. Williams, Note, Screening for Children: Choice and Change in the Wild West of Reproductive Medicine, 79 GEO. WASH. L. REV. 1305, 1306-07 n.10 (2011).

307 King, supra note 285, at 136-37.

308 Id. at 137. Italy's outright ban of PGS was condemned recently by the European Court of Human Rights in a case involving an Italian couple (both carriers of cystic fibrosis) prevented from utilizing PGS. Europe Rights Court Condemns Italy Ban on Embryo Testing, RAW STORY (Aug. 28, 2012), http://www.rawstory.com/rs/2012/08/28/europe-rights-court-condemns-italy-ban-on-embryo-testing/ (noting that of 32 Council of Europe member states examined, only Italy, Austria and Switzerland ban PGD testing).

309 King, supra note 285, at 137-38. (citing Gesetz zum Schutz von Embryonen [ESchG][The Embryo Protection Act], Dec. 13, 1990, BUNDESRAT DRUCKSACHEN [BR], 69/90 at 2746 (Ger.), translation available at http://www.auswaertiges-amt.de/cae/servlet/contentblob/480804/publicationFile/5162/EmbryoProtectionAct.pdf).

310 German Government Divided over Calls for Embryo Protection, SPIEGEL ONLINE (Jul. 12, 2010), http://www.spiegel.de/international/germany/bio-ethical-battleground-german-government-divided-over-calls-for-embryo-protection-a-706040.html.

311 Gesetz zur Regelung der Primplantationsdiagnostik, Sept. 2, 2011, BUNDESRAT DRUCKSACHEN [BR] 480/11 (2011) (Ger.), available at http://www.bundesrat.de/cln_171/SharedDocs/Drucksachen/2011/0401-500/480-11,templateId=raw,property=publicationFile.pdf/480-11.pdf (unofficial translation provided by Professor Christoph Henkel, Mississippi College School of Law).

312 Philippa Brice, Germany Debates Preimplantation Genetic Diagnosis, PHG FOUNDATION (Apr. 29, 2011), http://www.phgfoundation.org/news/8326/.

313 Government Divided, supra note 310.

314 See generally King, supra note 285 (exploring regulatory models from other countries and offering a proposal for regulation of PGS in the United States). Professor King notes that in the Netherlands PGS can only be used to identify serious conditions, with a goal of bringing about the birth of a healthy child. Id. at 166. Personhood proponents would likely be unwilling to entertain a discussion about whether certain conditions are serious enough to permit the destruction of a human person, and even if the probability of miscarriage or stillbirth was 100%, proponents may not feel that PGS is justified.

315 See supra notes 271-72 and accompanying text.

316 Gesetz zum Schutz von Embryonen [ESchG] [The Embryo Protection Act], Dec. 13, 1990, BUNDESRAT DRUCKSACHEN [BR], 69/90 at 2746 2.1 (Ger.), translation available at http://www.auswaertiges-amt.de/cae/servlet/contentblob/480804/publicationFile/5162/EmbryoProtectionAct.pdf.

317 LA. REV. STAT. ANN. 9:129 (2008).

318 Id. 9:130.

319 S.B. 169, 150th Gen. Assemb. Reg. Sess. 19-7-63(a) (Ga. 2009), available at http://www.legis.ga.gov/Legislation/20092010/89683.pdf

320 See supra note 281.

321 See ASRM, Criteria for Number of Embryos to Transfer: A Committee Opinion, 99 FERTILITY & STERILITY 44, 44-45 (2013), available at http://www.asrm.org/uploadedFiles/ASRM_Content/News_and_Publications/Practice_Guidelines/Guidelines_and_Minimum_Standards/Guidelines_on_number_of_embryos%281%29.pdf [hereinafter ASRM Transfer Guidelines]; Judith F. Daar, Selective Reduction of Multiple Pregnancy: Lifeboat Ethics in the Womb, 25 U.C. DAVIS L. REV. 773, 777-82 (1992) (describing the procedure as involving the insertion of a needle through the woman's abdomen and into the chest of the fetus to inject potassium chloride in order to stop the fetal heart).

322 See Catherine London, Advancing a Surrogate-Focused Model of Gestational Surrogacy Contracts, 18 CARDOZO J.L. & GENDER 391, 391 (2011) (describing a recent dispute between two Americanswho only wanted one childand their surrogate stemming from the surrogate's unwillingness to abide by a contract term that would have required her to undergo a selective reduction after she discovered she was carrying twins). It is not my intent to suggest that most selective reductions are sought simply because the intended parents prefer fewer children; only that it can happen.

323 Cf. Daar, supra note 321, at 796-806; Stacey Pinchuk, A Difficult Choice in a Different Voice: Multiple Birth, Selective Reduction and Abortion, 7 DUKE J. GENDER L. & POLY 29, 34-36 (2000) (each distinguishing selective reduction from abortion by noting, for instance, that in the former the terminated fetuses are not removed from the woman, and the intent is not to end the entire pregnancy). Professor Daar goes as far as to say that this difference with respect to intent so separates these two procedures as to render them wholly distinguishable. Daar, supra note 322, at 783. While personhood proponents may be able to live with a selective reduction when the woman's life is threatened, I am not convinced that they would view the procedure to be so different than abortion as to make it permissible when a patient simply prefers to raise fewer children or even when her health (as opposed to life) is at risk.

324 See supra notes 129-43 and accompanying text.

325 Kathleen Lee, In Support of a Gender-Neutral Framework for Resolving Selective Reduction Disputes, 44 FAM. L.Q. 135, 140 (2010) (noting that the risk of terminating the entire pregnancy increases as the number of original fetuses increases).

326 See ASRM Transfer Guidelines, supra note 321.

327 When Nadya Suleman underwent IVF in 2008, twelve pre-embryos were transferredsix successfully implanted, with two twinning, resulting in the gestation of eight fetuses. This instance earned her the popular nickname Octomom. See Alan Duke, Nadya Suleman's Doctor Loses California Medical License, CNN (Jun. 2, 2011), http://articles.cnn.com/2011-06-01/us/california.octuplets.doctor.revoked_1_kamrava-fertility-doctor-embryos?_s=PM:US; Lawyer: Octuplets Mom Implanted with 12 Embryos, ASSOCIATED PRESS, Oct. 19, 2010, http://today.msnbc.msn.com/id/39738767/ns/today-today_news/t/lawyer-octuplets-mom-implanted-embryos/.UDo0KaD2bPg.

328 See McKay, supra note 275.

329 ASRM, Elective Single-Embryo Transfer, 97 FERTILITY & STERILITY 835, 835 (2012), available at http://www.asrm.org/uploadedFiles/ASRM_Content/News_and_Publications/Practice_Guidelines/Committee_Opinions/eSET-nonprintable.pdf [hereinafter ASRM Single-Embryo].

330 See, e.g., ASRM Transfer Guidelines, supra note 321.

331 ASRM Transfer Guidelines, supra note 321.

332 See CDC 2010 ART REPORT, supra note 264. Similar data were reported by SART. See Clinic Summary Report, SART (2010), https://www.sartcorsonline.com/rptCSR_PublicMultYear.aspx?ClinicPKID=0.

333 ASRM Single-Embryo, supra note 329, at 835.

334 See I. Glenn Cohen & Daniel L. Chen, Trading-Off Reproductive Technology and Adoption: Does Subsidizing IVF Decrease Adoption Rates and Should it Matter?, 95 MINN. L. REV. 485, 503-04 (2010).

335 See, e.g., Catherine Pearson, IVF Study Shows 2 Eggs are Good, 3 Too Many, HUFFINGTON POST (Jan. 12, 2012), http://www.huffingtonpost.com/2012/01/12/ivf-study-shows-2-eggs-ar_n_1202020.html (discussing a study in the United Kingdom indicating that implanting three pre-embryos instead of two does not increase the likelihood of pregnancy); Tiffany Sharples, IVF Study: Two Embryos No Better than One, TIME, Mar. 30, 2009, http://www.time.com/time/health/article/0,8599,1888299,00.html (identifying a study in Finland suggesting there is no advantage to multiple-embryo implantation).

336 ASRM Single-Embryo, supra note 329, at 839.

337 This issue alone deserves its own article, but it is at least worth mentioning here to highlight discussions that may be had when operating under a personhood framework.

338 See CDC 2010 ART REPORT, supra note 264.

339 Id.

340 Id. The majority of cycles were performed on women over thirty five, with implantation rates of 26.9% (ages thirty-five to thirty-seven); 17.7% (ages thirty-eight to forty); 9.6% (ages forty-one to forty-two); and 4.2% (ages forty-three and up). Id. Similar data were reported by SART. See SART Report, supra note 332.

341 See CDC 2010 ART REPORT, supra note 264.

342 Sandel, supra note 150, at 208.

343 See discussion supra Part III B and notes 149-50.

344 See discussion supra Part III B and notes 149-50.

345 See CDC 2010 ART REPORT, supra note 264.

346 Id. (indicating that the percentages of transfers resulting in live birth are 55.8% and 7.4%, respectively). This statistic does not reflect the percentage of pre-embryos that survive through birth, because each transfer will involve multiple pre-embryos, not all of whom will survive even when a transfer results in a live birth.

347 See supra notes 140, 148-50 and accompanying text.

348 Military drafts come to mind as a situation where persons are unwillingly subjected to a known and significant risk of death for the greater benefit of society, though there are obvious differences between the two.

349 See supra notes 268-69 and accompanying text.

350 See supra notes 43-58 and accompanying text.

351 Troxel v. Granville, 530 U.S. 57, 65-66 (2000).

352 Jonathan F. Will, My God My Choice: The Mature Minor Doctrine and Adolescent Refusal of Life-Saving or Sustaining Medical Treatment Based Upon Religious Beliefs, 22 J. CONT. HEALTH L. & POLY 233, 248 (2006) (quoting Prince v. Massachusetts, 321 U.S. 158, 167 (1944)).

353 Id. at 246-54 (discussing the scope of parental authority in the context of medical decision-making).

354 See supra notes 43-58 and accompanying text.

355 Kim Kardashian's own experience with egg cryopreservation was shared on national television. Abbey Stone, Kim Kardashian Prepares for Motherhood by Freezing Her Eggs, HOLLYWOOD.COM (Sept. 17, 2012), http://www.hollywood.com/news/celebrities/40144952/kim-kardashian-prepares-for-motherhood-by-freezing-her-eggs?page=all.

356 See supra notes 38-41 and accompanying text.

357 See supra note 237.

358 Colo. Initiative 46 (2011) (proposed COLO. CONST. art. II, 32), available at http://www.sos.state.co.us/pubs/elections/Initiatives/titleBoard/filings/2011-2012/46Final.pdf.