One argument that’s been advanced in support of Oklahoma personhood bill SB-1433 is that it’s just the same as a Missouri statute which has been found constitutional, and that the Missouri statute doesn’t stop IVF from being practiced in Missouri.
This claim is incorrect. First, the Oklahoma bill is NOT just the same as the Missouri statute, because it does not contain language recognizing the supremacy of federal constitutional law. Second, saying the Missouri statute has been found constitutional is a fundamental misunderstanding of the Supreme Court ruling at issue in Webster v Reproductive Health Services. We’ll discuss those legal issues in a separate post.
Does that Missouri statute stop IVF, though? The answer isn’t as straightforward as Sen. Crain and Rep. Billy would have you believe.
Pro-life groups’ own legal analysis indicates that this statute could potentially be used to target infertility treatment. Consider this analysis of Missouri abortion law from the General Counsel of Missouri Right to Life:
Because §1.205 applies from the moment of “conception,” it is broad enough to protect all babies who are created from in-vitro fertilization. The logic of the court decisions mentioned above would embrace a conclusion that discarding unwanted or extra IVF embryos would constitute a crime in Missouri and would leave the responsible persons liable for civil suits for wrongful death. This writer is unaware of any court cases that have tested these conclusions in Missouri.
Does this statute apply only to deliberate embryo disposition? Certainly not. In State v Knapp, the Missouri Supreme Court found that the definition of personhood in §1-205 applied to the state’s involuntary manslaughter law, §565-204. That statute specifically provides for criminal charges for unintentional but foreseeable deaths; under the legal standard of recklessness, embryo cryopreservation would certainly meet that standard.
What Missouri Right to Life is saying here is that Missouri law doesn’t protect IVF. Physicians could, at any time, be slapped with criminal charges or civil suits for simply practicing IVF according to the medical standards of care. An overzealous Missouri prosecutor could file such charges tomorrow.
If SB-1433 becomes law, Oklahoma prosecutors can do the same thing. They will have the legal authority to make criminals of infertility physicians, simply for treating their patients and helping them build families. In fact, they’ll have a legal duty to do so — after all, officers of the court take an oath to uphold and defend the state’s laws.
No, Missouri hasn’t yet exercised that power. But are you really prepared to trust that the Oklahoma government won’t use it? Do you want to hand them that kind of control over your medical treatment?
Oklahoma doctors aren’t. The physicians who actually treat Oklahoma infertility patients are united in opposing SB-1433, because they fear the threat of criminal and civil prosecution. National medical associations like ACOG and ASRM and RESOLVE: The National Infertility Organization agree.
Once again, do you trust doctors who understand the medical issues, or do you trust politicians and interest groups who are willing to do whatever it takes to achieve their agendas?