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Where’s the future of IVF and abortion care? In the hands of voters


Where’s the future of IVF and abortion care? In the hands of voters

Jun 13, 2024 | 6:45 am ET
By Michael A. Wolff
Where’s the future of IVF and abortion care? In the hands of voters
Embryologist Ric Ross holds a dish with human embryos at the La Jolla IVF Clinic February 28, 2007 in La Jolla, California. (Sandy Huffaker/Getty Images)

Two years have passed since Missouri outlawed abortion nearly completely.

Missouri’s life-begins-at-conception law also seems to outlaw in vitro fertilization (IVF), the medical process that enables many infertile couples to conceive and bear children. If citizens of Missouri wish to protect this procedure then there will need to be a new law.

How is IVF related to the state’s ban on abortion? Let’s start with a simple question: When Missouri law proclaims that life begins at conception, does that mean that fertilized eggs are persons? The Alabama Supreme Court said yes, shocking families whose doctors are helping them become pregnant through IVF. Likewise, when the U.S. Supreme Court in the Dobbs case held there is no constitutional protection for reproductive decisions, does that mean that destruction of fertilized eggs could be considered homicide under the laws of these states such as Missouri?

The Dobbs decision in 2022 turned these questions over to the states, subject only to federal statutes (which do not apply to IVF or abortion, so far), so the wording of states’ laws now really matters.

What should happen in a working democracy is that state legislators would change the laws before rulings strike down access to IVF or patients with ectopic pregnancies die waiting to be treated. Changes in laws are difficult in the current extremist era.

States like Missouri, where voters can change the constitution, can protect access to care. But Congress, if extremists prevail, could enact federal laws to limit or bar state protections, even state constitutions.

“Words have meaning…and their meaning doesn’t change,” said the late Justice Antonin Scalia. We should take Scalia’s advice as a caution when politicians throw words around to assure us falsely that all is well with IVF and women’s emergency health care.

After Dobbs, we must read carefully what state legislators have enacted for us that fully apply. We need also to be aware that nationwide legislation has been proposed in Congress to trump state law and ban or severely restrict abortion.

Let’s look at the words: In vitro fertilization (IVF) is the process of fertilizing a woman’s egg outside the womb (in a “test tube,” as you’ve heard) with a man’s sperm. The fertilized egg is then implanted in the womb with the hope a child is born at the end of the pregnancy. Fertilized eggs can be frozen, stored for later use. In some cases, these eggs are discarded inadvertently or on purpose.

Is there a distinction between “fertilization” and “conception?” Some may equate “conception” with “pregnancy,” which occurs when a fertilized egg is implanted in the woman’s womb. Not so, according to Missouri law, which equates “fertilization” and “conception” by defining “conception” as “the fertilization of the ovum (egg) of a female by the sperm of a male.” Missouri law plainly says that “the life of each human being begins at conception” and “the term ‘unborn children’ or ‘unborn child’ shall include all unborn child or children or the offspring of human beings from the moment of conception until birth at every stage of biological development.” It is not necessary that the fertilized egg be implanted in a womb to be considered an unborn child.

So, does that make accidental discarding of fertilized eggs manslaughter, or the intentional discarding of those eggs murder? 

A 1992 Missouri Supreme Court case upheld the conviction for manslaughter of a negligent intoxicated driver who injured a pregnant woman in a collision that killed her unborn child. The court cited the definition of an “unborn child” in the life-begins-at-conception law which plainly says “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.”

Under current Missouri law, which considers fertilized eggs as persons, criminal punishments for women and doctors who discard fertilized eggs are possible unless legislators change the law or voters enact a proposed Missouri constitutional change likely to be on the ballot this November.

Some IVF proponents may take comfort from a pre-Dobbs 2-1 ruling in 2016 by the Missouri Court of Appeals that fertilized frozen embryos are not persons but are property of “special character.” The majority opinion was on solid ground when Roe v. Wade was the constitutional law of the land. But Roe is no longer law, so for any future ruling on this topic, we should look to the court of appeals dissent, also well-reasoned, which said that under Missouri’s law embryos are persons not property. In the recently concluded Missouri legislative session, a House bill to protect IVF was introduced but not referred to committee until the last day of the session, dead on arrival.

What about ectopic pregnancies, which result when fertilized eggs become implanted outside the womb, posing a serious risk to the woman’s life or health?

Medical care that ends these pregnancies may violate Missouri law which bans all abortions except in life-threatening emergencies or where there is serious risk of “substantial and irreversible” physical harm. Women will not be prosecuted, but a health care provider (not the state prosecutor) will have to prove that a woman’s life or physical health was in danger before the abortion care was provided. We will continue to have news reports of women denied care until they are clearly in danger of death or irreversible damage to their reproductive organs. Doctors, nurses, and midwives who practice obstetrical care will probably continue leaving states with such laws, especially where (as in Missouri) they must prove their innocence.

What’s the solution?

The anxiety resulting from the decisions stripping away the constitutional protection of the Roe v. Wade line of cases could readily be dispatched by a law from Congress to protect IVF as proposed by Senator Tammy Duckworth, or to more broadly protect reproductive healthcare, as proposed by Senator Tammy Baldwin. But so far, that has not happened. Legislative efforts in most states with restrictive laws, as we’ve seen in Missouri, are also blocked.

Which leaves these questions exactly where the U.S. Supreme Court put them – in the hands of voters in Missouri – who will decide whether to protect reproductive health care in our state constitution – and voters across the country who will decide whether Congress will have a working majority to override state laws.