With the historic overturning of Roe v Wade, we want to keep you our valued patients up to date on the most recent communications regarding management of ectopic pregnancies and miscarriages. Please refer to the following memo drafted by Tim Schlesinger, a partner at Midwest Fertility Law Group, that details the current law and how treatments of ectopics and miscarriages are not impacted.
Please continue to be reassured that the ruling will not impact our patients or us as providers of fertility treatments. We plan to continue to provide the best possible fertility care to the women and couples we serve.
Impact of New Missouri Abortion Law on Treatment?
The Missouri Right to Life of the Unborn Child Act became effective on June 24, 2022, as the result of the overturn of Roe v. Wade. How does that impact the treatment that can be given to patients by Fertility Clinics in Missouri? The application of these statutes is brand new, so there is no precedent upon which to rely. This memo represents my opinion.
The new statutes, Section 188.015 and 188.017, provide, essentially, as follows:
Performing an abortion is unlawful, except in cases of medical emergency. This raises two questions relevant to fertility clinics:
- What is an abortion?
- What is a medical emergency.
These terms are defined. The meaning of the definitions will evolve, over time, but we can reach reasonable conclusions now about the certain treatments.
- Can you treat an ectopic pregnancy? Yes.
An abortion is defined as “the act of prescribing any instrument, device, medicine…with the intent to destroy the life of an embryo or fetus in his or her mother’s womb.” If the ectopic pregnancy is not in the uterus, then the procedure to treat that pregnancy does not fall under the definition of abortion.
There is a quirk in the portion of the statute which defines abortion, in that there are 2 alternative definitions and the word “or” is used in between them, so that either definition can be applied. However, I believe the only rational way to read the statute is to apply the procedure in question to the definition that best applies. Otherwise, there would be no reason to have both definitions in the statute.
Even if the statute were to be read in such a manner as to ignore the definition which requires the pregnancy to be in the mother’s womb, treatment of an ectopic pregnancy would still be allowed under that statute, because it is a medical emergency, which is defined below.
- Can you perform a D&C, or other procedures, to treat a miscarriage or any other scenario in which the fetus is no longer living. Yes.
The second definition of abortion defines it as the termination of a pregnancy “by using or prescribing any instrument, device, medicine, drug, or other means…with an intention other than … to remove a dead unborn child.” Once again, treatment for a miscarriage, by D&C, or other means, does not fall within the definition of abortion, under the statute.