When I make claims about the potential effects of Yes On 26, I don’t like to ask you to take my word for it. I always like to explain my thinking, and if possible, to back it up with pro-life sources.
We’ve had a commenter point us to this legal memo from the Liberty Counsel, which proposes to explain how Initiative 26 “will likely have little effect on medical professionals’ exposure to liability”. However, a careful reading of the document demonstrates that it in fact supports OUR position that 26 will have dramatic effects on the treatment of life-threatening pregnancy complications such as ectopic pregnancy.
To recap what we’ve already written, the possible treatments for ectopic pregnancy are medical treatment with a chemotherapy drug called methotrexate, surgery to remove the embryo from the fallopian tube, and surgery to remove the entire tube, or watchful waiting to see if a natural miscarriage occurs before treatment is required.
Our contention is that personhood would prohibit the first two alternatives, and leave doctors and patients with no other option than tubal removal surgery. This is supported by Personhood Colorado, which states that only tubal removal is acceptable under personhood because its intent is to remove the damaged tube, and the death of the embryo is an unfortunate and unintended side effect. This is known as the “double effect” principle.
It’s not hard to find pro-life sources which argue that methotrexate violates double effect. In fact, it’s fairly difficult to make the argument that MTX does NOT violate double effect, since it works by destroying the developing embryo’s placenta in order to cause the death of the embryo, so that it can be naturally miscarried. It is administered with the direct intent to kill the embryo, not to treat physical damage in a way that happens to cause it to die.
I know that a lot of people consider this to be so much angels-dancing-on-pins, but if you believe in double effect, the distinction is important. Which brings us to the question: what does Yes On 26 believe, and how do they think physicians would be able to treat ectopic pregnancies:
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 “principle of double effect”, recognized by the Supreme Court of the United States, as well as the Supreme Court of Kentucky. In “cases involving abortion, ‘indirect abortion[s]‘, defined as ‘any instance in which a treatment or operative procedure is performed for some other purpose but incidentally and secondarily does cause the expulsion of the fetus,’, are deemed morally licit.” 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.
This memo was produced by Liberty Counsel, a legal organization “dedicated to advancing religious freedom, the sanctity of life, and the family”. Their vice-president of legal affairs, Stephen Crampton, sits on the Yes On 26 Advisory Board. The memo was produced for the specific purpose of addressing medico-legal concerns about Initiative 26.
The quote above clearly states that double effect is the correct legal principle to be applied in the treatment of ectopic pregnancies under personhood. If that is the case, then the only logical conclusion is that ectopic treatments which violate double effect will not be permitted, and that physicians will be criminally liable for performing them. Since methotrexate and salpingostomy are generally thought to go against double effect, it is strongly implied that physicians will no longer be able to offer any treatment for ectopic pregnancy except for watchful waiting or tubal removal surgery.
Ectopic pregnancy affects 65,000 women a year in the US alone. It’s not rare — Mississippi women are diagnosed with ectopic pregnancy literally every day. Methotrexate is becoming the standard of medical care in eligible patients, because it is less invasive than surgery.
If double effect becomes the legal standard to which physicians must adhere, methotrexate will not be available to Mississippi women with life-threatening, non-viable pregnancies.
That’s the position of Yes On 26. It may be frightening, but it’s not a “scare tactic”.