-1- LEGAL MEMORANDUM To Personhood Amendment

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-1- LEGAL MEMORANDUM To Personhood Amendment Powered By Docstoc
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www.LC.org                                                                           liberty@LC.org

                                          Reply to: Virginia

                                   LEGAL M EM ORANDUM

To:                                                     and Other Interested Parties
Date: September 17, 2011
Re:   Impact of Amendment 26, the Mississippi Personhood Amendment, on the Civil Liability
       of Doctors

                                           I ntroduction

         The Personhood Amendment
Mississippi Constitution (the Bill of Rights)                                           moment of
fertilization, cloning or the functional equivalent thereof. Once it becomes effective, the
Amendment will confer legal                                                                       In
addition, it will require recognition of the unborn child for purposes of civil law. Of course, this
Amendment does nothing more than establish a constitutional principle; it does not immediately
enact criminal or civil legislation.

        Pursuant to Article 15, § 273(10) of the Mississippi Constitution,
approved by the electors shall take effect thirty (30) days from the date of the official declaration
                                                                                    The Personhood
Amendment is silent as to its effective date. Therefore, if approved by the electors on November
8, 2011, the Amendment would become effective thirty days after the Secretary of State declares
the vote valid, which would presumably place the effective date of the Amendment at some time
near the end of the year 2011 or the beginning of the year 2012.

                                      Statement of the I ssue

        Assuming the Personhood Amendment is enacted, is it necessary to enact enabling
legislation in order to ensure licensed physicians performing legitimate medical procedures are
not unnecessarily held civilly liable for death or injury to an unborn person?

                                           Bottom Line

          Probably not as Amendment 26 will likely have little effect on medical professionals
exposure to liability as much of the civil liability exposure some opponents would like to claim
actually already exists even without personhood for the unborn. Amendment 26 is more likely to


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assist medical professionals in understanding current liabilities than it is to create new liabilities.
In fact, the Amendment is likely to create a more congruous understanding of life within the
Mississippi Code.

                                                     Discussion

        Mississippi is not the first state to recognize that life begins at conception, fertilization, or
its functional equivalent. In fact, at least seven other states have recognized wrongful death
actions for nonviable unborn persons.1 Case law from these states is helpful in understanding
whether physicians may face additional liability due to the Mississippi
begins at conception, as these cases may be influential in leading Mississippi courts to reach
certain conclusions.

         1.       Under Current Law, M edical Professionals M ay Not be Held Liable for
                  Causing the Death of Unborn Persons in the Course of Saving the Life of the
                  M other.

         The Mississippi wrongful death statute, Miss. Code Ann. § 11-7-13, states in pertinent
part:

         Whenever the death of any person or of any unborn quick child shall be caused
         by any real, wrongful or negligent act or omission, or by such unsafe machinery,
         way or appliances as would, if death had not ensued, have entitled the party
         injured or damaged thereby to maintain an action and recover damages in respect
         thereof, or whenever the death of any person or of any unborn quick child shall


1
  Ala. Code § 26-23A-10                                                                                    rovide a basis
for recovery for the woman for the wrongful death of the child, whether or not the unborn child was viable at the
time the abortion w                                      Mack v. Carmack, __So.3d. __, 2011 WL 3963006 (Ala. Sept.
9, 2011) (holding that under Alabama Wrongful Death Act as amended, cause of action existed on behalf of unborn
previable fetus); Ill.Rev.Stat.1989, ch. 70, par. 2.2 (The wrongful death statute in Illinois provided in pertinent part:
                                               uman being when an injury is caused, when an injury takes effect, or at
death, shall not foreclose maintenance of any cause of action under the law of this State arising from the death of a
human being caused by wro                                     La.Civ.Code Ann. art. 26 (West 2011) An unborn child
shall be considered as a natural person for whatever relates to its interests from the moment of conception. If the
child is born dead, it shall be considered never to have existed as a person, except for purposes of actions resulting
                                             §                       1. The general assembly of this state finds that: (1)
The life of each human being begins at conception; (2) Unborn children have protectable interests in life, health, and
well-being; (3) The natural parents of unborn children have protectable interests in the life, health, and well-being of
their unborn child. 2. Effective January 1, 1988, the laws of this state shall be interpreted and construed to
acknowledge on behalf of the unborn child at every stage of development, all the rights, privileges, and immunities
available to other persons, citizens, and residents of this state, subject only to the Constitution of the United States,
and decisional interpretations thereof by the United States Supreme Court and specific provisions to the contrary in
the statutes and constitution of this state . Pino v. U.S., Okla., 183 P.3d 1001, 1004 (Okla. 2008) (States the
death of one, referenced in Okla. Stat. Ann. tit. 12 § 1053 (West 2011), refers to a nonviable fetus.); S.D. Codified
Laws § 21-5-1 (West 2011) Liability for wrongful death where damages for injury could have been recovered--
                ; Farley v. Sartin, 466 S.E.2d 522, 533-534 (W. Va. 1995) (Person, as re
wrongful death statute includes nonviable unborn child.).



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         be caused by the breach of any warranty, express or implied, of the purity or
         fitness of any foods, drugs, medicines, beverages, tobacco or any and all other
         articles or commodities intended for human consumption, as would, had the death
         not ensued, have entitled the person injured or made ill or damaged thereby, to
         maintain an action and recover damages in respect thereof . . . . The action for
         such damages may be brought in the name of the personal representative of the
         deceased person or unborn quick child for the benefit of all persons entitled
         under the law to recover . . . .

Miss. Code. Ann. § 11-7-13 (West) (emphasis added). The highlighted language was added to
the statute in 2003 to make explicit that a wrongful death action lies for the death of an unborn
quick child. The Mississippi Supreme Court has held that quickening generally occurs between
the tenth week and the fourth month of pregnancy. 66 Federal Credit Union v. Tucker, 853
So.2d 104, 112 (Miss. 2003).

        In 66 Federal Credit Union, which was decided before the amendment of the wrongful
death statute                                  , the court determined that an unborn quick child
                                                                                             r an
unborn child is a person before quickening, but two concurring justices did opine that the unborn
child is a person under Mississippi law from the moment of conception. See id. at 115 I
would extend the rights of the unborn to a less arbitrary moment in the life of a human being,
that moment being when a separate life begins at conception. (Cobb, J., concurring in part and
in result, joined by Easley, J.). The majority also intimated that they would likely find a pre-
viable unborn child to be a person under the wrongful death statute, writing that they found

the facts before them warranted reaching the issue. Id.             We note also that the separate
opinion of Justice Cobb concurring in result has merit as to its view.

        Accordingly, it appears that if the Mississippi Supreme Court was presented with a
wrongful death case brought on behalf of an unborn child who died before quickening, the Court
would likely find a cause of action, whether or not Amendment 26 was passed. Therefore,
explicitly d
exposure to civil tort liability.

       In addition, medical professionals are generally protected from liability for causing the
death of an unborn person during attempts to save the life of the mother as a result of the
                            recognized by the Supreme Court of the United States, as well as the
Supreme Court of Kentucky.2                                                      defined as any
instance in which a treatment or operative procedure is performed for some other purpose but


2
  Quill v. Vacco, 521 U.S. 793, 808 n.11 (1997) (applying the principle of double effect to terminal sedation); Woods
v. Commonwealth of KY, 142 S.W.3d 24, 47 n.13 (Ky 2004) (applying the principle of double effect to attempts at
                                                                                                                one good
and one bad. The action may be taken if (1) the act, itself, is good, or at least neutral; (2) the actor's intent is good,
not bad; (3) the good effect precedes, or at least occurs simultaneously with, the bad; and (4) a proportionately grave
reason justifies the act.



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incidentally and secondarily does cause the expulsion of the fetus, are deemed morally licit. 3
Thus, applying the principle of double effect, courts will not likely find liability for the removal
of ectopic pregnancies, or the provision of other life-saving procedures for the mother, that result
in death of the unborn person.

           2.      The Liability of M edical Professionals for Wrongful Death Remains Largely
                   Unchanged by the M ississippi Personhood Amendment.

       Upon passage of Amendment 26, the scope of liability faced by medical professionals
would only be extended by approximately ten additional weeks,                                  66
Federal Credit Union has already found liability for wrongful death on behalf of unborn persons
                                 . Thus, recognition that life begins at fertilization would only
provide potential liability for approximately ten additional weeks.

        In the seven other states (Alabama, Illinois, Louisiana, Missouri, Oklahoma, South
Dakota, and West Virginia) that recognize wrongful death actions on behalf of unborn persons
prior to viability (that is, prior to the unborn person being able to live outside the womb), only
two cases were found where a woman brought suit for the termination of an ectopic pregnancy. 4
In both cases, the mother was told that she had an ectopic pregnancy when the pregnancy was
actually uterine; neither plaintiff prevailed on her wrongful death claim.5 Similarly, based on
precedent from other states, it is unlikely that infertility professionals exercising ordinary care
with in vitro fertilization will see an increase in liability.6

       Moreover, while no cases have been reported in which a suit on behalf of an unborn
person who died prior to becoming quick in the womb prevailed, given the Mississippi Supreme
                 in 66 Federal Credit Union and its refusal           the question of whether to
apply the concept of life commencing at the moment of conception for an unborn as being
applicable for a claim under the wrongful death statute, 7 current malpractice insurance policies

3
 Leonard J. Nelson, III, God and Woman in the Catholic Hospital, 31 J.Legis 69, 104 (2004) (citing Charles J.
McFadden, Medical Ethics 81, 162 (3d ed. 1953)).
4
 Mercado v. Mount Sinai Hosp. Medical Center of Chicago, 889 N.E.2d 730, 733 (Ill. App. Ct. 2008); Coffey v.
Hall No. 0516-CV092662007, WL 3408158 (Mo. Cir. Aug. 23, 2007).
5
    Id.
6
 In 2008, an Illinois state court determined that despite having a statute that specifically states that a wrongful death
                                                                                                                ois could
not recover from a physician for the death of embryos created for in vitro fertilization because the court found that

still in a state of gestation where the pre-existing law already addressed situations involving the viable fetus still in a
state of gestation and the born-alive infant at any stage of development Miller v. American Infertility Group of
Illinois, S.C., 897 N.E.2d 837, 846 (5th Dist. Ill. 2008). Thus, the Illinois court concluded that no cause of action
would lie under its law until implantation occurred. Like the wrongful death statute in Illinois, the wrongful death
statute in Mississippi was created prior to passage of Amendment 26. Unlike the Illinois statute, however,

                                      Miller may be questioned.
7
    66 Federal Credit Union v. Tucker, 853 So.2d 104, 112 (Miss. 2003).


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should already cover a lawsuit brought on behalf of unborn persons who are not yet quick in the
womb, even without a Personhood Amendment in place.

                                                                               very recent wrongful
death decision recognizing a wrongful death action on behalf of a pre-viable fetus and the
propensity of courts to follow the persuasive precedent of courts in other nearby jurisdictions.8
On September 9, 2011, the Supreme Court of Alabama (9-0 ruling) noted the irrationality of the
                                                      eath of viable fetuses
actually benefits the tortfeasor who inflicts a more severe injury. Under the viability rule, a
tortfeasor who inflicts an injury that causes the immediate death of a nonviable fetus escapes
punishment, while a tortfeasor who inflicts an injury that does not result in death, or that results
                                                                                 9
                                                                                   The same public
policy concern that led the Supreme Court of Alabama to extend wrongful death tort liability to
pre-viable fetuses in that state also exists in Mississippi in neither state should a tortfeasor who
takes the life of an unborn person prior to quickening or viability be rewarded for his acts by
virtue of the courts insulating him from liability.

        Not only is this a policy concern, but it highlights inconsistencies within Mississippi law
 criminal action may be invoked when unborn persons are victimized at any stage of gestation,10
and an unborn person maintains inheritance rights at all stages of gestation,11 thus, to maintain
that civil liability should apply only after quickening appears incongruous.

        Defining personhood as beginning at the moment of fertilization will allow courts to
include the period of life between fertilization and the unborn person becoming quick in the
womb in the application of                                             ; however, there is also a
possibility of courts taking such action today. Thus, in accordance with the examples provided
by other states and court precedent in Mississippi,                                 liability remains
largely unaffected by the recognition that life begins at conception or its functional equivalent.

        Nevertheless, out of an abundance of caution, we would be in favor of enabling
legislation explicitly providing immunity to medical professionals who unintentionally caused
injury or death to the unborn child during treatment of the mother for an ectopic pregnancy or
other life-threatening situations, as well as to those involved with in vitro fertilization who do not
recklessly or intentionally destroy living human beings.



8
    Mack v. Carmack, No. 1091040 (Ala. Sept. 9, 2011).
9
    Mack v. Carmack, No. 1091040, slip op. at 36 (Ala. Sept. 9, 2011).
10
     Miss. Code. Ann. § 97-3-37 (West 2011).
11
     Igor Levenberg, Personal R                                                                                     83 St.
                                         The conceived unborn are of legal consequence because they may be used as
measuring lives for the purposes of the [Rule Against Perpetuities]. Because the RAP requires that a contingent
future interest must vest, if at all, within twenty-one years after the expiration of some life in being when the interest
was created, the implication, at least for the purposes of trust law, is that a conceived unborn child is a life in
being.


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                                           Conclusion

        The likelihood of medical professionals incurring additional liability as a result of the
passage of Amendment 26 is slight, according to precedent in Mississippi and case law in states
with similar legislation. In fact, passage of Amendment 26 will do little more than reconcile
current inconsistencies in the law. Even so, enabling legislation protecting against civil liability
for harm to the unborn child occasioned by treatment of the mother for life-threatening situations
and for all but reckless or intentional destruction of persons created in vitro would be prudent.




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