Reuben Hemmer
After Politico leaked a draft majority opinion from the U.S. Supreme Court that full-throatedly overturned the constitutional right to an abortion, St. Louisans gathered in protest.
Missouri's so-called "trigger law" could quickly make abortion illegal in Missouri if Roe v. Wade is overturned. But legal experts say that the trigger law would affect much more than what most people commonly think of as abortion.
University of Missouri–Kansas City law professor Yvette Lindgren tells the RFT that the way Missouri's trigger law is written, combined with recent decisions by the Supreme Court of the United States, means that if Roe v. Wade is overturned, women who use IUDs, couples struggling to have children and women having miscarriages will be impacted.
Missouri's trigger law effectively says that as soon as Roe v. Wade is overturned, abortion can be outlawed in any one of three ways: by Governor Mike Parson, through an opinion by Attorney General Eric Schmitt or via passage of a resolution by the Missouri General Assembly.
"All three will be eager to do so, particularly Schmitt," says Anita Manion, professor of political science at the University of Missouri–St. Louis.
The Missouri trigger law would outlaw abortion except in medical emergencies, but “medical emergency” is not defined. The scope of what is included under "abortion" or "abortifacient" is broader than ending a pregnancy through surgery or the abortion pills.
"The law defines an unborn child as a human being from the moment of conception and in every stage of its biological development," Lindgren says. “So conception, zygote, morula, embryo and fetus is how the law defines an unborn child.”
Therefore, emergency contraception, such as the Plan B pill, would be considered an abortifacient. But so, too, says Lindgren, would intrauterine devices, a form of contraception used by more than 8 percent of American women. In addition to their use as daily contraception, IUDs can be used as emergency contraception.
"If a human being begins at the moment of conception, the result will be that forms of contraception will be criminalized under this law," Lindgren says. "The argument is that, with those forms of birth control, the egg gets fertilized, and the birth control method prevents it from implanting into the uterus."
Lindgren says there is precedent for contraceptives to be legally classified as abortifacients from the 2014 U.S. Supreme Court decision in Burwell v. Hobby Lobby.
In that case, the privately owned Hobby Lobby did not want to pay for health insurance for their employees that would require the company to pay for certain contraceptives.
"No medical organization has ever said [contraceptives] are an abortifacient," Lindgren says. "But [Hobby Lobby] said, ‘No, our deeply held belief is that life begins at conception, those are abortifacients.’ And the Supreme Court said, ‘We will allow you to define it that way.’"
Miscarriages and IVF
Many legal and medical experts are warning that Missouri's tigger law could have grave consequences for women having miscarriages and couples struggling to conceive.
Lindgren says that under what could be the new status quo in Missouri, doctors would be wary of treating a woman who is in the early stages of miscarriage.
Lindgren points to an example of a pregnant woman having a miscarriage who comes into the hospital for care and is hemorrhaging or showing signs of infection or sepsis. The recommended course of action is often to evacuate the uterus. However, because this entails terminating the pregnancy, studies have shown doctors in Catholic hospitals, where abortion is banned, are currently either hesitant or refusing to perform the procedure.
Lack of treatment poses severe risks for the patient. One often-cited 2016 report from the ACLU includes the story of a Chicago woman who entered a Catholic hospital showing signs of miscarriage. It took ten days for her to be transferred to another hospital where her uterus was evacuated. By that time, she had a 106 degree fever and, according to the report, was "dying of sepsis." The woman survived but suffered long-term cognitive damage.
Lindgren says that if Missouri's trigger law takes effect, doctors in the state would be under similar pressure to avoid any procedure that even remotely resemble an abortion.
"If a doctor has the possibility of being criminally prosecuted and losing their medical license, they are not going to undertake that risk, even if they think that the likelihood of being prosecuted is low," she says.
Fertility clinics may be similarly bound.
Right now, it is standard practice for doctors to fertilize more eggs than is strictly needed because the process of producing and having eggs harvested is difficult for women. The more eggs that are fertilized, the more likely one is to be successfully implanted in the womb.
It’s not uncommon for doctors to implant more than one fertilized egg at a time.
"If all of the fertilized eggs take, then the doctor will do selective reduction," Lindgren says. "So, if five eggs are implanted, they will take out three of them so that the two can survive and be carried to term."
That practice would become criminalized under Missouri's trigger law, Lindgren says.
This would mean that fertility clinics would leave Missouri. Or, those that would remain, could only offer a process that is much more expensive and onerous .
"Abortion cannot be isolated from the larger continuum of women's health care in terms of its regulation," Lindgren says.
