Caucus counsel's legal Dobbs implications on contraceptive health care (June 29, 2022)

MEMORANDUM To: From: Re: Date:

Minority Leader Rep. Crystal Quade, Missouri House Minority Caucus Casey Millburg, Caucus General Counsel Dobbs implications upon Chapter 188, RSMo., and contraceptive health care.

6/29/2022 Summary The June 24, 2022, U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health

Organization1 triggered the implementation of many provisions in Chapter 188, RSMo., enacted by HB 126 (2019). Included in these newly-triggered provisions are a total ban on abortion as well as the criminalization of providing those health care services. In the days since the Dobbs ruling, there has been significant public concern about whether the new bans prohibit or criminalize access to contraceptives in Missouri. The concern stems from the wording of an abortion statute that suggests government has the power to declare that a pregnancy can be “measured” as beginning prior to conception, “on the first day of the woman’s last menstrual period.”2 An analysis of Chapter 188, Missouri’s abortion laws, demonstrates that this and other abortion statutes do not apply, cannot apply, and should not be applied to contraceptives. Missouri law is clear: an abortion can only occur when there is the presence of a fetus, embryo, or pregnancy in a person’s body, which can only occur when there is the presence of an “unborn child” in a person’s body, which can only occur as a result of conception. Consequently, any prosecution of contraceptive access, use, or health care providers for providing contraceptive health care services under Missouri’s abortion statutes would be a baseless and egregiously incorrect application of those laws. It would also be a violation of federallyrecognized Constitutional rights to birth control use and access that remain in effect after Dobbs.

1 2

No. 19-1392, 597 U.S. (more) 2022.

188.015(6).

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Analysis It is a physical impossibility for a pregnancy to begin before conception, a fact recognized by Missouri’s abortion statutes, which define conception as “the fertilization of the ovum of a female by the sperm of a male.”3 Nonetheless, a section of Missouri’s abortion statutes purports to allow the government to declare that a pregnancy can be “measured” as beginning prior to conception, “on the first day of the woman’s last menstrual period.”4 Because Dobbs triggered an outright ban upon nearly all abortion in Missouri, the confusion generated by this statute centers on whether, when looking at the definition of abortion in Missouri law, contraception is now considered an “abortion” that faces the same prohibitions and criminalization. It is not, and therefore cannot and should not be subject to prosecution.

Missouri’s Definition of Abortion A legal analysis of this issue must start with the definition of “abortion” under Missouri’s statute.

Missouri’s abortion statutes provide two definitions, one that targets the facilitation of abortion, and one that targets the person in whose body an abortion occurs: (a) The act of using or prescribing any instrument, device, medicine, drug, or any other means or substance with the intent to destroy the life of an embryo or fetus in his or her mother’s womb; or (b) The intentional termination of the pregnancy of a mother by using or prescribing any instrument, device, medicine, drug, or other means or substance with an intention other than to increase the probability of a live birth or remove a dead unborn child.5

Importantly, both definitions specify that under Missouri law an abortion only occurs if and when there is either an existing embryo, fetus, or pregnancy present in a person’s body. Consequently, Missouri’s abortion statutes only apply when those circumstances are present in a person’s body. The legal analysis of this issue must next turn to what Missouri’s abortion statutes say about embryos, fetuses, and pregnancy.

3

188.015(3) RSMo. 188.015(6).

5 188.015(1), RSMo. 4

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Conception: Embryo, Fetus, and Pregnancy in Missouri Abortion Statutes Chapter 188, RSMo., does not define the terms “embryo,” “fetus,” or “pregnancy.” They therefore must be considered and understood in the context of when and how they are used throughout the entirety of Chapter 188, RSMo. What that chapter does define and establishes as a controlling principle of Missouri’s abortion statutes, including in regards to the presence of an “embryo,” “fetus,” and “pregnancy,” is the occurrence of conception.

The Guiding Principle of Conception Beginning with its definition as “the fertilization of the ovum of a female by a sperm of a male,”6 conception is used throughout Chapter 188, RSMo., to proscribe the intent and applicability of Missouri’s abortion laws. To be clear: Missouri’s abortion statutes can only be applied to situations where conception has occurred, not to situations where there is potential for it or failure of it to happen. In passing the abortion laws, the Missouri General Assembly practically shouted – repeatedly, clearly, and unambiguously – that it drafted them for what happens at and after conception. Conception is the trigger without which nothing in Chapter 188, RSMo., can apply.

All of this is reiterated throughout the abortion statutes. They state, “at conception, a new genetically distinct human being is formed.”7 They goes on to declare that the Missouri General Assembly’s intent and interest in implementing the abortion statutes now in effect is “[p]rotecting unborn children throughout pregnancy and preserving and promoting their lives from conception to birth,” as well as “[e]nsuring respect for all human life from conception to natural death.”8 Notably, as part of its statutes governing how statutory construction and the interpretation of laws, the Missouri General Assembly passed a statute declaring that the position of the state is that “the life of each human being begins at conception,” and that an “unborn child” and “unborn children” exist from “conception until birth at every stage of biological development.”9

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188.015(3), RSMo. 188.026.2(1), RSMo. 8 188.026.5(1), (3), RSMo. 9 1.205.1-3, RSMo. 7

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A primary, though not the only, purpose of contraception is to ensure no conception occurs within a person. Emergency contraception (“Plan B”), intrauterine devices (IUDs), and other forms of birth control operate in a variety of ways to prevent ovulation, fertilization, or implantation. The government may currently prosecute, within the parameters of the abortion law, for an abortion of an “unborn child” that results from conception, but there is simply no statutory foundation for it to prosecute an individual or organization under the abortion statutes for the absence of conception or failure to conceive. Nor is there any statutory basis for the government to prosecute for the failure to produce an unborn child within a person’s body.

There is significant public concern regarding whether the government will prosecute under the abortion statute for prescribing or using those forms of contraception which may prevent implantation.

Depending upon when it is taken, emergency contraception could either prevent ovulation, fertilization, or implantation.10 In the vast majority of cases, IUDs prevent fertilization, but in may in some instances may prevent implantation.11 It is a threshold matter that, in order for Missouri’s abortion statutes to be applied, there must be an occurrence of conception in a person’s body. Missouri government has no statutory standing or interests to defend under the abortion statutes when no conception has occurred, and certainly no way of knowing when and what contraception does inside of a person’s body. It would be a blatant falsehood for any prosecution to claim that any abortion statute provides government with standing or interest to assert regarding the possibility or potentiality of conception, the failure to conceive, or the failure to produce an unborn child in a person’s body.

Having established that conception determines the scope and applicability of Missouri’s abortion laws, the legal analysis next turns to how conception governs how the terms “embryo,” “fetus,” and

See, e.g., “How Does Plan B Work?”, FDA, https://www.fda.gov/drugs/postmarket-drug-safety-informationpatients-and-providers/fdas-decision-regarding-plan-b-questions-andanswers#:~:text=Plan%20B%20works%20like%20other,to%20the%20womb%20(implantation)..

11 See, e.g., “Myths and Facts About the IUDs,” International Planned Parenthood Federation, https://www.ippf.org/blogs/myths-and-facts-about-intra-uterine-devices.

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“pregnancy,” are treated by Missouri’s abortion statutes, in order to further assess the extent and applicability of Missouri’s abortion law and its permissible prohibitions and prosecutions.

Embryo and Fetus As described in the above sections, one of two ways Missouri law defines the occurrence of an abortion is: (a) The act of using or prescribing any instrument, device, medicine, drug, or any other means or substance with the intent to destroy the life of an embryo or fetus in his or her mother’s womb12 Thus, one circumstance that is required by law to be present in a person’s body in order for an abortion to occur is the existence of an embryo or fetus in a person. Missouri’s abortion statutes recognize that this is only possible after there has been a conception, which the law defines as the “fertilization of the ovum of a female by a sperm of a male.”13 The only place in Missouri’s statutes where the word “embryo” appears is in the abortion statutes, where it is included in the definition of “unborn child.” 14 The statutes state that an “unborn child” exists “from the moment of conception until birth.”15 To ensure there is no ambiguity about what it considered to be “conception until birth,” the Missouri General Assembly continued the definition of “unborn child” by listing “every stage of [] biological development” that, in its view, occurs after and as a result of conception: 

“Zygote.” A zygote is the first stage of development, and is a cell formed as the result of the fertilization of the ovum of a female by the sperm of a male.16



“Morula.” A morula is the next stage in development after a zygote, when the cell begins to divide and form many cells.17



“Blastoycyst.” A blastocyst is the next stage in development after a morula, when the cellular structure forms an inner group of cells that become the embryo and an outer group of cells that become the placenta, as well as fluids.18

12

188.015(1), RSMo. 188.015(3), RSMo. 14 188.015(10), RSMo. 15 Id. 16 See, e.g., “The Stages of Human Embryonic Development,” Mayo Clinic, https://www.mayoclinic.org/healthylifestyle/pregnancy-week-by-week/in-depth/prenatal-care/art-20045302.

17 Id. 18 Id. 13

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

“Embryo.” An embryo is the next stage in development after a blastocyst, and occurs once a blastocyst has successfully implanted into the inner lining of a uterus, when internal organs and external structures begin to develop.19



“Fetus.” The fetus is the final stage of development where organs continue to grow and develop.20

It is abundantly clear that the definition of abortion that requires the presence of an “embryo” or “fetus” inside of a person applies to circumstances that, in fact and in statute, can only occur after and as the result of conception. That definition relies upon the statutory definition of “unborn child,” which cannot be construed to apply to anything that happens before or in the absence of conception, such as the possibility or potentiality of conception, or the failure to conceive.

This definition of abortion cannot and should not be applied by the government to prosecute people who use or prescribe contraception, whether patients or providers. For government to attempt a prosecution under the abortion statutes using the state’s definition of an abortion of conception-produced embryo or fetus, for the purpose of targeting the use or prescription of something used to prevent conception from ever producing an embryo or fetus in a person’s body, would be a baseless and egregiously incorrect application of these statutes.

Pregnancy As described in above sections, the second way Missouri law defines the occurrence of an abortion is: (b) The intentional termination of the pregnancy of a mother by using or prescribing any instrument, device, medicine, drug, or other means or substance with an intention other than to increase the probability of a live birth or remove a dead unborn child.21

Pregnancy is not defined in Chapter 188, RSMo., but the context in which it is discussed and used throughout the abortion statutes repeatedly makes clear that, under statute, a pregnancy exists only after and as a result of conception occurring inside a person’s body. The Missouri General Assembly clearly

19

Id. Id. 21 188.015(1), RSMo. 20

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stated that its intent for the state’s abortion laws was for them to be used to “protect[] pregnant women and their unborn children,”22 as well as to “[p]rotect unborn children throughout pregnancy.”23 The abortion statutes state that an “unborn child” or “unborn children” exist as the result of conception,24 the “fertilization of the ovum of a female by a sperm of a male.”25 The law clearly states that pregnancy cannot exist without the presence of an “unborn child” in a person’s body, caused by conception.

Elsewhere in the abortion statutes, “pregnancy” is further recognized under law as only occurring after and as the result of conception in a person’s body. In codifying its “legislative findings” on abortion into the abortion statutes, the Missouri generally assembly stated that, “[c]onfirmation of a pregnancy can be indicated through the detection of the unborn child’s heartbeat,”26 and that “[h]eart rate monitoring during pregnancy…is used to measure the heart rate and rhythm of the unborn child.” 27 It further references “miscarriage after clinical recognition of pregnancy,”28 pregnancy indicators relating to the “heartbeat in an unborn child,”29 and the development of placenta during pregnancy.30 The abortion statutes clearly and repeatedly recognize that a pregnancy results only after and as a result of conception.

There exists more risk of and concern for malicious prosecutions of girls, women, and the health care providers with whom they make deeply personal birth control decisions under this statute than any other, particularly in regards to individuals access to and use of contraception that may, but does not exclusively operate, to prevent implantation. This risk is particularly high when looking at the recent trends of malicious prosecutions in Missouri motivated by political ambitions or personal viewpoints. In light of these concerns, the Missouri House Minority Caucus is attempting to get clarity on from Missouri’s Attorney General, who both signed Missouri’s abortion ban into law and has concurrent jurisdiction to prosecute for violations under it. An opinion request has been submitted to the Attorney 22

188.010(2), RSMo. 188.026.5(1), RSMo. 24 1.205.1-3, RSMo. (cited by 188.026), 188.015(10), RSMo. 25 188.015(3), RSMo. 26 188.026.2(8), RSMo. 27 188.026.2(9), RSMo. 28 188.026.2(12), RSMo. 29 188.026.2(12)-(13), RSMo. 30 188.026.2(14), RSMo. 23

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General’s office requesting their interpretation of this statute, as well as whether he and his office will encourage or protect people from prosecution for use of contraception in Missouri.

But while Missourians who themselves can or care for people who can become pregnant should be aware of the potential for those with prosecutorial power to abuse this statute for personal gain or other personal reasons, they should also be mindful that there exists a powerful check to such prosecutions.

Under the United States Constitution, as set forth in Griswold v. Connecticut, states have no right to criminalize or otherwise ban contraceptive use.31 Although headlines have circulated regarding one U.S. Supreme Court justice’s call in his concurring opinion in Dobbs for an overturn of Griswold,32 the constitutional protections it recognized and enforced regarding access to and use of birth control still stand. This includes all Americans’ freedom from the government overreach into their deeply personal birth control decisions, conduct which the Court recognized as “repulsive to the notions of privacy.”33 There is abundant, unequivocal proof in statute that the state recognizes that a pregnancy cannot exist prior to or in the absence of a conception inside a person’s body. But, recent concerns have been raised about whether or not the state may do exactly that, which is where the legal analysis moves next.

The “Gestational Age” Statute The recent concerns stem from the abortion statutes’ definition of “gestational age,” which is defined as the “length of pregnancy as measured from the first day of the woman’s last menstrual period.”34 With the U.S. Supreme Court’s recent decision in Dobbs, the concern is whether the newlyenacted bans prohibit or criminalize access to contraceptives in Missouri. In other words, does this statute mean that the government can consider a person to be “pregnant” regardless of whether they have actually conceived, at any time, hold that their use of birth control is therefore an abortion, and prosecute them accordingly under the abortion statutes? The answer, when looking at the context of how the “gestational

31

381 U.S. 479 (1965).

See, e.g., Forgey, Quint and Gerstein, Josh, Justice Thomas: SCOTUS ‘should reconsider’ contraception, samesex marriage rulings, Politico, Jun. 24, 2022, https://www.politico.com/news/2022/06/24/thomas-constitutionalrights-00042256.

33 Id. at 381.

34 188.015(6), RSMo. 32

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age” definition of pregnancy is applied, as well as what constitutes “pregnancy” “unborn children,” and an “abortion” under Missouri statutes, is an unequivocal no.

The Missouri General Assembly did not define “gestational age” in isolation of other abortion statutes. Instead, it used that term as part of a specific pattern throughout the abortion statues, to specifically and exclusively refer to circumstances resulting from or pertaining to the conception of an “unborn child” or “unborn children,” existing and present in a person’s body, at six weeks “gestational age” or more. These include: 

The measurement used to determine when an abortion must be performed in a hospital (sixteen weeks gestational age or later).35



The “findings of the General Assembly”36 regarding: o

The risk of miscarriage of “unborn children” in women at varying prenatal visit intervals during an existing pregnancy (six, eight, nine, and eleven weeks gestational age);37

o

Using the detection of a heartbeat to determine the likelihood of the viability of an existing pregnancy with an “unborn child” (eight weeks gestational age);38

o

When brain waves in unborn children are believed to have been recorded (eight weeks gestational age);39

o

When spontaneous movements have been recognized in “unborn children” (eight and fourteen weeks gestational age);40

o

When sensory receptors are believed to develop in “unborn children” (seven to eight, ten to ten-and-a-half, fifteen, and sixteen weeks gestational age);41

o

The performance of intrauterine needling on an “unborn child” (sixteen weeks gestational age);42

o

The provision of anesthesia for “unborn children” (sixteen weeks gestational age);43

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188.025, RSMo. 188.026.2, RSMo. 37 188.026.2(12), RSMo. 38 188.026.2(13), RSMo. 39 188.026.2(15), RSMo. 40 188.026.2(17), RSMo. 41 188.026.2(18)-(19), RSMo. 42 188.026.2(20), RSMo. 43 188.026.2(21), RSMo. 36

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o

The predominant abortion method involving an “unborn child” in Missouri at fourteen or fifteen weeks gestational age.44



The “medically accurate information” the state requires a patient to receive prior to an abortion includes “the unborn child’s gestational age.”45



Certain circumstances when providers must make a determination of the “gestational age of the unborn child” and take certain additional steps regarding viability if the “unborn child is twenty weeks or more.”46

In every single instance, the statutes pertain to the presence of a embryo or fetus inside of a person’s body, that has been inside of that person’s body for several weeks. It is clear that the Missouri General Assembly’s intent in drafting the “gestational age” statue, and indeed what all the statutes pertaining to gestational age say, is for “pregnancy” to be treated in every regard, including for the purpose of the “gestational age” definition, as what results from an actual occurrence of conception in a person’s body. The definitional statute is not intended to nor does it function beyond any purpose other than attempting to determine the start date of a conception that has resulted in a embryo, fetus, or pregnancy creating an “unborn child” in a person’s body. Its use is restricted to that limited purpose.

Were government to attempt a prosecution under this statute, to say that in the absence of conception, a woman’s use of contraception constitutes birth control and violate the state’s abortion statutes, it would have to prove a great deal that it cannot. It would, first and foremost, have to prove that an abortion occurred, which Missouri’s abortion statutes clearly and repeatedly stress cannot occur without conception resulting in the presence of an embryo, fetus, or pregnancy inside a person’s body.

The government could not. It would have to prove that it somehow has standing to prosecute contraceptive use or access under the abortion laws, which require the government to prove that the prevention or absence of conception or the failure to conceive is the same thing as the termination of an “unborn child’s” presence in a person’s body in the form of an embryo, fetus, or pregnancy, caused by

44

188.026.2(24), RSMo. 188.027.1-.5, RSMo. 46 188.030.2, RSMo. 45

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actual conception. The government could not. And, it would have to prove that pregnancy, under Missouri state statutes, is the same thing and indeed includes the complete absence of conception. The government could not.

This is not to dismiss the concerns of anyone in this state who is capable of becoming pregnant, who currently uses contraception and plans to continue doing so, that a malicious prosecutor could attempt to apply Missouri’s abortion statutes to contraceptive use and access. The unfortunate reality in Missouri is that there are some prosecutors who may think nothing of launching statutorily baseless attacks to advance either their personal preferences or political ambitions. That is where the legal analysis next turns.

Prosecution Under the Abortion Statutes Missouri’s abortion statutes state allow prosecution of abortion, except when it is performed or induced due to a medical emergency.47 They proscribe a class B felony to a person who “knowingly performs an abortion of an unborn child in violation” of Missouri’s abortion statutes, and exempt people who receive an abortion only from criminal conspiracy charges, leave them open to other criminal charges.48 They also subject “[a]ny person who contrary to the provisions of” Missouri’s abortion laws, “who knowingly performs, induces, or aids in the performance or inducement of any abortion or knowingly fails to perform any action required by” those laws to a class A misdemeanor, unless a different penalty is otherwise proscribed under state law.49 This latter statute encompasses people who receive an abortion, as described in the preceding sentence.

What is notable about the first statute, in light of the statutory analysis done in previous sections, is that it applies to “abortion” and an “unborn child.” All prosecutions under 188.017, RSMo., will need to satisfy the statutory definitions and thresholds required for those terms. As the previous sections

47

188.017.2, RSMo. Id. 49 188.075.1, RSMo. 48

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describe, none of those statutes, nor the statutes upon which they rely, apply to any situations other than when a conception occurs inside of a person’s body.

The second statute applies to “abortion” and the statutes which are only triggered by an abortion.

All prosecutions under 188.075, RSMo., will also need to satisfy the statutory definitions and thresholds required for “abortion.” Again, as described in prior sections, the Missouri statutes clearly state that for an abortion to exist, there must be an embryo, fetus, or pregnancy, which requires the presence of an “unborn child” in a person’s body, which does not occur without conception.

Regarding who has jurisdiction to bring prosecutions for violation of the abortion statute under Missouri’s abortion law, statute provides that the Missouri attorney general has concurrent jurisdiction alongside each prosecuting and circuit attorney in their respective jurisdictions.50 Once again, however, this jurisdiction applies only to the statutes which are triggered by an abortion, which requires an embryo, fetus, or pregnancy, which requires the presence of an “unborn child” in a person’s body, which does not occur without conception. On its face, Missouri’s abortion statute does not give Missouri’s attorney general, prosecuting attorneys, or circuit attorneys, the power, interest, or standing to prosecute under that statute for use of or access to contraception. At most, a person’s use of or access to contraception creates the mere potentiality or absence of conception, or a failure to conceive. Without conception, Missouri’s abortion laws simply and unequivocally do not and cannot apply.

Finally, as stated in prior sections, no Missourian should be naïve to the potential for those given prosecutorial power under the abortion statutes to abuse it for political or personal ambitions. However, any individuals who would make such an extraordinary choice to use the privilege of office and the power and muscle of government to so invasively target Missourians will necessarily run into the protective wall of Griswold. Under the U.S. Constitution, government commits extraordinary and unacceptable overreach when it criminalizes or otherwise bans its citizens’ access to or use of contraception. Griswold still stands.

50

188.075.3, RSMo.

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Conclusion The use and prescription of contraceptives, including Plan B, intrauterine devices (IUDs), or other forms of birth control remains entirely legal under Missouri law. Any prosecution to the contrary under Chapter 188, RSMo., has no foundation in law, because the law states that an abortion cannot occur without an embryo, fetus, or pregnancy, which cannot occur without the existence of an “unborn child,” which cannot occur without conception. Missouri’s abortion laws apply strictly to “conception to birth” of an “unborn child.” No Missouri law, and certainly not Missouri’s abortion laws, which are predicated and triggered only by the occurrence of conception in a person’s body, allow for the prosecution of patients or providers for access to or use of contraception. Finally, there remains intact and untouched, even postDobbs, a federally-recognized right against state government criminalizing or banning individuals’ use of or access to contraception.

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