Lawyers prospective on 26

This is from a lawyer out of Jackson. The letter will be the first comment as my stupid phone doesn't let me send files. Or maybe i just don't know how. Haha

-Kevan-

Why would Planned Parenthood and the ACLU lie about Birth Control? Because it's their only hope to keep abortion legal in Mississippi.



TO WHOM IT MAY CONCERN:



Amendment 26, if passed, will give pre-natal life the same right to equal protection under the law that you and I enjoy. In layman’s terms, this means that laws which currently protect those who are born will also protect those who are unborn, regardless of their stage of development.

In light of this, opponents of Amendment 26 argue that if a zygote (i.e., an unborn child at the moment of conception) is granted equal protection under the law, then methods of abortifacient birth control, such as various types of birth control pills and IUD’s, would be prohibited because they may cause the uterus to expel the zygote.



Not quite. Amendment 26, in and of itself, will not ban any particular method of birth control. There is nothing in the express language of the measure that would ban any medical procedure, device or drug. Such a ban would first require legislation passed by the House and the Senate and signed into law by the Governor. Unless and until the Legislature and the Governor do this, no method of birth control will be banned by the passage of Amendment 26 alone.



Why am I so certain of this fact?



Under the concept of due process, the government cannot take a property right from someone (such as the right to use a particular drug) without first giving such person ample notice in the law. Unless the law clearly states that doing “X” is wrong, or that the possession of “Y” is a crime, then the State cannot prevent a person from doing “X” or possessing “Y”. Notice is a critical function of what we lawyers call “due process.”

Amendment 26 makes absolutely no reference to birth control methods. Therefore, if critics are correct about the ramifications of Amendment 26, then any prohibition of a particular method of birth control would have to be implied by the language of the Amendment. Even then, that implication would have to be crystal clear to a person of average intelligence; otherwise, due process would be violated. For unless the State makes it perfectly clear to the average Mississippian that using birth control is illegal, the State simply cannot prosecute violations of said use.



Opponents argue that such an implication would be clear from the text of the Amendment. They note that Amendment 26 will grant zygotes the right to life (i.e., the right to not be expelled from the uterus). They further contend that certain birth control methods will expel zygotes from the uterus. Therefore, opponents contend that Amendment 26, by and through our homicide statutes, will necessarily ban these birth control methods.



Logic teaches us that if “A” implies “B”, then “Not-B” will always imply “Not-A.” (To illustrate this concept, if someone says that all criminals are bad, then he is also implying that all good people are not criminals. Therefore, if you wanted to disprove this point, you would only need to find one instance where a good person has committed a crime.) In light of this concept, to disprove the opponents of Amendment 26, all we must do is demonstrate that zygotes are not always expelled from the uterus when women use abortifacient birth control methods. If we can find just one instance—just one possibility—where a zygote is not expelled by these methods, the train of logic between the passage of Amendment 26 and a complete ban on abortifacient birth control will be broken; thus, Amendment 26, without any subsequent legislation, would contain insufficient notice to deprive women of the right to use these methods.



Let’s examine some possibilities. A woman who is using an IUD could very well have intercourse only during times when she is not ovulating. Likewise, a woman using the pill may not ovulate at all. (After all, this is the primary function of the pill, is it not?) But even if the woman did ovulate and conceive while using these methods, there is no absolute guarantee that pregnancy would be avoided. A zygote conceived following intercourse could still be implanted in the uterus notwithstanding the presence of an IUD. (I personally know someone who was conceived even though his mother was using an IUD.) Furthermore, how many times have you heard of women getting pregnant while using the pill?



Just because a woman is using abortifacient birth control does not necessarily mean that a zygote will be conceived and then expelled every time she has intercourse. This is particularly true since many of these methods have purposes that are independent of preventing pregnancy.



A biochemist once told me that RU-486, the morning after pill, is one of the best drugs on the market for cervical cancer. Likewise, many women with polycystic ovary syndrome use birth control pills to regulate their cycles. I also understand that women with heavy periods use IUD’s to control their menstruation. These methods may be used in the absence of sexual activity, and therefore independently of the conception of a child.



Therefore, it would violate due process for Amendment 26 alone, without subsequent legislation, to prohibit these methods, particularly with regard to women who use these methods for non-sexual purposes. For how can an Amendment that speaks of personhood for the unborn prohibit any drug or device that may be used by women who are not even conceiving children? But even for women who are sexually-active, there is no guarantee that these methods will actually end a pregnancy, because there is no guarantee that a conception will even occur, much less be terminated. Without this guarantee, it would be illogical to conclude that Amendment 26 would ban any method of birth control.



If this were not enough proof, put aside the issue of birth control methods and think of all the other possible ways that a mother could cause harm to her unborn child. For decades, we have been told that women who smoke could suffer miscarriage. Some studies have even shown that miscarriage is associated with fathers who smoke. Likewise, studies have shown that caffeine use by pregnant women may increase the rate of miscarriage.



Amendment 26 is silent about tobacco or caffeine, just as it is silent about birth control. Nevertheless, will the critics now say that Amendment 26, absent any additional legislation, will ban cigarettes because a pregnant woman may want to smoke? Likewise, will they argue that Amendment 26 will ban coffee or colas or tea simply because a pregnant woman may wish to partake of the same? Is there enough notice in the text of Amendment 26 alone to ban coffee, tea or smokes?



The bottom line is that Amendment 26 in and of itself will not ban any birth control method. The Amendment’s language neither expresses nor implies such a ban. Therefore, without clear notice of any prohibition against birth control, the State, absent additional legislation, cannot prohibit birth control based solely upon the text of Amendment 26 without violating the due process rights of women who use these methods.



Sincerely,



Matthew D. Wilson

Attorney at Law
(Copied with permission)



.

lol i love lawyers (regardless of what anyone has to say about them)

just remember.....for every lawyer there will be a different interpretation and different set of ideological beliefs.


Mr. Wilson here has a great argumentative style (keep his # in your phone contacts! lol)

Yes, and also remember for every doctor OBGYN, or health professional that takes either side, there will be one that has an opposite view. Because all these people are going by emotion, at least to some extent. My point is, what is there is there. I would love to see the lawyers on this site weigh in with what they think of Mr. Wilsons findings. Strictly from a legal point of view as would pertain to the law. I am no lawyer and would like to know if other lawyers thinks the case he makes for due process rights is correct from again, a strictly legal point of view.

I like how he kept saying "26 in and of itself". Of course it won't itself, but it can and probably will be construed to mean birth control pills are illegal... In my opinion.

Thats what i'm asking. This lawyer makes the case that it is not possible without further legislative action and he makes his case based on law. All I'm asking is what do you base your case on legally? We can all say what we think any law/initative would/could/might do but we have to have some viable reason if we are to persuade others of our position. I could say this legislation will possibly cause the tires on all our cars to spontaniously go flat if it isn't passed. But without facts to support that, I probably shouldn't use that to argue my stance. I don't know Mr. Wilson, but from my point of view, and again i'm no lawyer, he makes a valid legal argument. Thats all i'm saying.

I agree with Mr. Wilson and think he is absolutly correct in his assesment.

i am a criminal justice major and plan to attend law school so i've got a small pit of knowledge on how the legal process goes and if i understand it right mr. wilson is correct. i dont like the idea of giving the government the right to tell me i cant use certain birth control options tho. i dont see how we can tell people who are consciously and responsibly deciding not to have a child at this time they cant use birth control. i do have a problem with them being able to legally kill the child though, through abortion, but i believe this bill goes farther than just abortion. it has the ability to get into birth control, iuds, miscarriage, ectopic pregnancy, which if not terminated will usually kill the mother and child when the child will never be born anyway, invetro, and much more. from what i've seen there are far too many gray areas in this bill for me to vote for it but i want more info before i vote against it too.
cloning is something that is not being mentioned much but the bill very obviously goes into that and i am not for that so that may be my determining factor to not vote for it. we'll see

All I can say -- there is no law yet written that is immune to a court's interpretation.... and a court's interpretation is nothing more than the interpretation of an individual person ... and each individual person has their own set of beliefs, morals, and outlook on life --- we do not need more laws.

captain-03 wrote:All I can say -- there is no law yet written that is immune to a court's interpretation.... and a court's interpretation is nothing more than the interpretation of an individual person ... and each individual person has their own set of beliefs, morals, and outlook on life --- we do not need more laws.

sounds like you know what's going on capt.

captain-03 wrote:All I can say -- there is no law yet written that is immune to a court's interpretation.... and a court's interpretation is nothing more than the interpretation of an individual person ... and each individual person has their own set of beliefs, morals, and outlook on life --- we do not need more laws.

Especially ones that try to regulate one's morality. Never quite understood the conservative mentality that says they're all for less govt. interferance in our lives, yet have no problem at all spending millions of tax payer dollars on lost causes such as this. To be honest, it seems to me that conservatives are pretty hypocritical, because it seems they want an awful lot of interferance people's lives, especially when it comes to moral issues. Don't know about you, but I'll put my moral fiber up against any of theirs any day. I know the difference between right and wrong, and am plenty capable of making my own decisions in matters that concern it without a law to guide me.

Just a correction to Hrdnox, the amendment doesn't cost anything. In fact, it would cut costs going to organizations like Planned Parenthood. I'm honestly not sure if MS gives to them or not, but I know the feds do.

Also, all laws legislate morality in some form or another. It's sensible to want to have laws to protect a human life at all stages, which is why we have laws against assault, murder, theft, robbery, and, soon hopefully, abortion.

One thing I'm sure of,, if the ACLU is against it, I am for it.I think there is another liberal group that wants to knock it down.
scott

I'd stand corrected, if it wasn't for the court costs. If you think this bill can stand the mustard without any serious resistance, please think again. This bill will ultimately cost millions, and, for what? So some mightier than thou zealots can say they tried. Sure hope they go to Heaven, because it's gonna cost us a bunch. I won't argue the merits, because it's useless, but please don't think this bill will be cheap or costless. If you think abortion is going by the wayside because of this bill, you're pretty nieve. Don't our legislators have more important issues to address? Like jobs, or something else that might prove helpful? We've already just about eliminated abortion from our state, so I see this as useless as the legislators themselves. I may be wrong, but I'm pretty sure our state and/or the Federal Govt. aren't paying for abortions in MS and haven't for a long time. If this bill makes you feel warm and fuzzy, by all means vote for it. I've got more important things on my mind. I swear, Sheeple will buy into anything their leaders come up with. Perhaps that's why our country is in such shape today. Sorry, but, I see a lot of things that need attention a lot more than this, but please be sure and vote yes on this issue. It'll make you feel better.

Hate to argue, but this is a moral issue. whether it involves money or not.
scott

we started with the innocent babies, it has been off and on with the killing of the handi-capped and elderly.
putting all the fluff aside, we have killed 52 million tax payers in the name of choice. if we dont speak up for the babies, who will.
i believe in choice, responsible choice.
and sadly enough it is a moral, (heart) issue.

http://www.wlbt.com/story/15894156/miss-medical-personnel-split-on-ballot-initiative

<--here's an article on the medical community

http://www.wlbt.com/story/15875625/personhood-amendment-debated-at-mc-law-school

<-- here's the law school debate i saw


after reading this and seeing the debate i am even more convinced that this initiative is nothing more than an emotionally based initiative as stated above by savage

thus....i shall stand firm as one morally opposed to abortion but even MORE opposed to govt interference. all emotions and heart put aside. the govt interferes enough with individuals as it is and as a real conservative i feel it would be ideologically hypocritical to support govt interference on a personal decision.

i still cannot wrap my mind around a pre-fetus having rights that usurp the mother that houses it.

respectfully....

as always

God bless

Tree of Liberty, I couldn't agree with you more. There are several medical conditions that would kill the mother if the pregnancy were not ended. The basic tenet of most people in the medical community is to not allow abortion "except in instances of rape, incest, or the life of the mother". If this amendment passes, would medically necessary abortions be allowed? No one knows, the amendment is too open. Would cloning be protected and allowed? No one knows, the amendment is too open. Would ___ be allowed? No one knows, the amendment is too open...you get the point. I believe that initiative 26 opens the door wide for hyper-liberal and hyper-conservative judges to make decisions that harm patients.

And, if all abortion were illegal, try to chew on this ethical delimma. A fetus is not considered "viable" until 23 weeks (from time to time, a 20-weeker will survive, but that's like winning the lottery twice while having dinner with bigfoot). A woman enters the ER with complications from her 16 week pregnancy. It's decided that the pregnancy must be ended if the mother is to live. At 16 weeks, the fetus looks fairly human and even has cycles of sleep and possibly even dreams, but it can not survive outside of the mother. If the fetus is removed, it will die; mother will live. If abortion is illegal because a judge rules that "Life begins at conception, thus the act of removing that life is paramount to murder", both will die. I am very pro-life, but deciding to not abort would be deciding to let the mother die. Both lives are sacred, but why should two be lost when one can be spared?

Because this amendment would open a pandora's box, I will not support it.

Thanks for a couple of educated and well thought out responses. I never said whether I'm pro choice or pro life, because I consider that a personal matter that I don't care to debate with anyone else. Doesn't personally effect me anyway, since I opted for a vasectomy after my last child was born because I wanted my wife off the dangers of birth control. However, legal obortion is the law of the land right now, whether we agree with it or not.

If you choose to take a stand on that, by all means, stand up tall and proud against it, but please don't waste your time and resources participating in the State's misguided attempt to circumvent the law. I might consider voting for a good law, but this one isn't.

Joshua wrote:I like how he kept saying "26 in and of itself". Of course it won't itself, but it can and probably will be construed to mean birth control pills are illegal... In my opinion.

I have to agree.

Quote from letter:

For unless the State makes it perfectly clear to the average Mississippian that using birth control is illegal, the State simply cannot prosecute violations of said use.

As gun owners in this state we all know this statement is complete we all saw what happened with 506, and "interpretations" of other vague laws like open carry.

I'm pro-life when it comes to aborting a baby because it's inconvenient, but this ammendment will leave far more interpretation of the law than I am comfortable allowing elected and appointed officials use their better judgement to understand.