Contraceptives & Plan B Are Still Legal in Missouri, and Likely to Remain Legal
Regardless of your views on abortion, the recent overturning of Roe v. Wade has thrown reproductive healthcare into a new, wildly confusing era. While legal scholars, hospitals, legislators, and healthcare providers try and tease out the details of Missouri’s trigger law banning abortion, it’s important to focus on what we know for sure. Contraception and emergency contraception are still legal in Missouri. Even Missouri Attorney General Eric Schmitt’s office says so in an interview with KSBH News in Kansas City. [1]
The Missouri law that went into effect on Friday, shortly after the U.S. Supreme Court overruled Roe v. Wade, provides that “no abortion shall be performed or induced upon a woman, except in cases of medical emergency.”[2] Crucially, most laws have sections that define what the key words — in this case, “abortion” — mean in the context of the law. In the same chapter of Missouri law, “abortion” is defined two ways. First, it is an act “with the intent to destroy the life of an embryo or fetus.”[3] Second, it also means an “intentional termination of the pregnancy.”[4]
So why do contraception and Plan B not violate these statutes? Because they do not destroy an embryo or fetus, nor do they terminate a pregnancy. And here we need to dip our toes into biology for a second, because the Missouri statute does not define “pregnancy,” “embryo,” or “fetus.”
Medical experts (including the American College of Obstetrics and Gynecology and the National Institute of Child Health & Development) agree that the state of “being pregnant” doesn’t happen until about weeks 5–8, when a fertilized egg has travelled down the fallopian tube and is implanted into the uterus.[5] Only then is it considered an embryo.[6] The embryo continues to grow until it is considered a fetus, around weeks 7–10.[7]
Contraception methods prevent the fertilization of an egg by sperm, either through hormones (which make it impossible for an egg to be fertilized) or physical barriers (which prevent sperm from fertilizing an egg). According to the American College of Obstetrics and Gynecology, fertilization is simply the “first step in a complex series of events that leads to pregnancy.”[8] (In fact, over 30% of fertilized eggs never implant in the uterus.[9]) Without fertilization, there can be no implantation. Without implantation, there can be no pregnancy.[10] Without pregnancy, there is no embryo or fetus. Because contraceptives do not terminate or destroy a pregnancy, embryo, or fetus, contraceptives are not illegal under Missouri’s abortion ban.
Emergency contraception pills (ECPs), such as Plan B or the “morning after pill,” are not abortion pills. If you are already pregnant, ECPs won’t hurt the pregnancy.[11] Instead, ECPs prevent an egg from becoming fertilizable (that is, preventing ovulation) or, in some cases, prevent fertilization or implantation from happening. Like contraception, these methods of pregnancy prevention do not “destroy the life of an embryo or fetus” nor do they “terminate” a pregnancy.
Even if, in the future, Missouri anti-abortion legislators attempt to pass legislation banning contraception, such bans are likely to fail because they would violate federal law. Under current federal law, insurers and employee benefits plans must provide contraceptives to their members as part of a larger requirement to provide women’s preventive health services under the Affordable Care Act.[12] This includes public insurers like Medicaid and private insurers without religious exemptions. Furthermore, an attempt to ban contraceptives could put Missouri’s entire federal healthcare funding at risk.
Of course, although contraception and ECPs remain legal in Missouri, Missourians still face challenges accessing the healthcare they need. If you are unable to get the reproductive care you need because of cost, location, or because your local provider is no longer offering those services, you can still get care in person and online. Planned Parenthood still provides no- or low-cost reproductive healthcare services, and online companies like HeyJane.Co can help you get the care you need, deserve, and are legally entitled to.
Sources:
[1] Ryan McMonigle, MO AG: Plan B, Contraception Remain Legal in Missouri; Saint Luke’s Not Offering Emergency Contraception. KSHB Kansas City (Jun. 29, 2022, 12:54 P.M.), https://www.kshb.com/news/local-news/missouri-based-saint-lukes-health-system-locations-no-longer-providing-emergency-contraception.
[2] Mo. Rev. Stat. 188.017.2. https://revisor.mo.gov/main/OneSection.aspx?section=188.017&bid=47548&hl=.
[3] Mo. Rev. Stat. 188.017(1)(a). https://revisor.mo.gov/main/OneSection.aspx?section=188.015&bid=47547&hl=.
[4] Mo. Rev. Stat. 188.017(1)(b). https://revisor.mo.gov/main/OneSection.aspx?section=188.015&bid=47547&hl=.
[5] About Pregnancy. Natl. Inst. Child Health & Development (2017) (“Pregnancy is the term used to describe the period in which a fetus develops inside a woman’s womb or uterus.”), https://www.nichd.nih.gov/health/topics/pregnancy/conditioninfo#:~:text=Pregnancy%20is%20the%20term%20used,segments%20of%20pregnancy%2C%20called%20trimesters.
[6] Id. See also Stages of Development of the Fetus, Merck Manual (May 2021), https://www.merckmanuals.com/home/women-s-health-issues/normal-pregnancy/stages-of-development-of-the-fetus.
[7] Supra notes 5–6.
[8] How Your Fetus Grows During Pregnancy, Am. Coll. Obstetrics & Gynecology (2020), https://www.acog.org/store/products/patient-education/pamphlets/pregnancy/how-your-fetus-grows-during-pregnancy.
[9] How Does Contraception Work? Not Through Inducing Abortion. University of Wisconsin Collaborative for Reproductive Equity (CORE) (Feb. 2020), https://core.wisc.edu/wp-content/uploads/sites/1349/2021/03/Contraception-Is-Not-Abortion_Feb-2020-4.pdf.
[10] 62. Fed. Reg. 8611 (1997), 45 C.F.R. 46.202(f); See also American College of Obstetrics and Gynecology (ACOG). (2013). Brief for the Counsel for Amici Curiae. Burwell v. Hobby Lobby, 573 U.S. 13–354 & 13–356 (2014). http://sblog.s3.amazonaws.com/wp-content/uploads/2013/10/13-354-BRIEF-OF-AMICI-CURIAE-PHYSICIANS-FOR-REPRODUCTIVE-HEALTH-et-al....pdf.
[11] Emergency Contraception, Office on Women’s Health (Jan. 27, 2022), https://www.womenshealth.gov/a-z-topics/emergency-contraception#:~:text=In%20the%20United%20States%2C%20there,ECPs%20available%20for%20emergency%20contraception%3A&text=ella%C2%AE%20(ulipristal%20acetate),%E2%84%A2%2C%20and%20Take%20Action%E2%84%A2.
[12] Press Release. Readout: Secretaries Becerra, Walsh Meet with Health Insurers, Employee Benefit Plan Stakeholders to Discuss Birth Control Coverage. HHS.Gov (Jun. 27, 2022), https://www.hhs.gov/about/news/2022/06/27/readout-secretaries-becerra-walsh-meet-with-health-insurers-employee-benefit-plan-stakeholders-to-discuss-birth-control-coverage.html.
