ST. LOUIS — A Kansas City-area hospital system decided late Wednesday to resume providing emergency contraceptives after not making them available to patients in the wake of Missouri’s new abortion ban. But concern and confusion over their use remain.
The hospital system reversed course after Missouri Attorney General Eric Schmitt, who signed the legal opinion to trigger the abortion ban, said earlier in the day that the law does not prohibit the use of what is known as the morning-after pill or Plan B.
“Missouri law does not prohibit the use or provision of Plan B, or contraception,” said Chris Nuelle, spokesman for the attorney general.
, with 16 hospitals in the Kansas City region, issued a statement saying its facilities would resume providing emergency contraceptives “under new protocols,” but officials still need further clarification.
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“The ambiguity of the law, and the uncertainty even among state officials about what this law prohibits, continues to cause grave concern and will require careful monitoring,” the statement read.
On Friday, the U.S. Supreme Court issued a ruling that eliminated the constitutional right to abortion. The ruling immediately triggered a 2019 Missouri law banning all abortions in the state, except for “cases of medical emergency.”
The Kansas City Star reported late Tuesday that St. Luke’s officials had decided to stop providing emergency contraception “until the law becomes better defined.”
Under the law, providers who violate the abortion ban can be charged with a class B felony, punishable by five to 15 years in prison, and lose their medical license. It’s up to local prosecutors or Schmitt, a Republican running for U.S. Senate, to prosecute abortion violations.
The hospital system has taken the stance that the law is ambiguous on contraceptives like Plan B, which work primarily by stopping the release of an egg from an ovary, according to the FDA. The drug may also prevent fertilization, the union of sperm and egg. If fertilization does occur, it may prevent a fertilized egg from attaching to the womb and becoming an embryo.
It is sometimes referred to as the morning-after pill, and works best if taken right away. But depending on the type, the drug can be taken three to five days after unprotected sex.
Another form of emergency contraception is a copper intrauterine device, or IUD, which can be implanted into the uterus up to five days after unprotected sex and works by preventing sperm from reaching the egg. It may prevent implantation.
Hospital systems typically offer emergency contraception to victims of sexual assault seeking care in emergency rooms.
A matter of interpretation
The St. Luke’s decision came on the heels of some analysts publicly stating that Missouri’s abortion ban triggered in the wake of Friday’s court decision could be interpreted to include the use of emergency contraceptives.
Joe Bednar, who served as chief counsel for former Gov. Mel Carnahan, as an assistant prosecutor in Jackson County and is now an attorney at Spencer Fane law firm, said he believes preventing implantation of a fertilized egg can be considered abortion under Missouri law.
The law says any “termination of the pregnancy” through an action “with an intention other than to increase the probability of a live birth or to remove a dead unborn child” would be considered an abortion in the state, Bednar said.
“Anything from fertilization on — any attempt to destroy that fertilized egg — is an abortion,” he said.
Former U.S. Sen. Claire McCaskill, a Democrat, that she spent the weekend with prosecutors and “statutory construction experts” who agreed that a zygote (fertilized egg not yet implanted) is considered an unborn child under Missouri law.
“A woman can be prosecuted right now for taking anything or using any device that is not intended to increase the likelihood of survival of a fetus,” McCaskill said. “That means anything that prevents implantation of a zygote, or anything that prevents fertilization of an egg.”
But other experts and even some anti-abortion advocates disagree with that interpretation, and fear it could be dangerous.
State Rep. Mary Elizabeth Coleman, R-Arnold, who helped pass Missouri’s abortion ban in 2019, said on Twitter, “This is clearly a wrong interpretation of Missouri law.”
Missouri’s definitions of abortion were in place long before the 2019 law that was triggered Friday, Coleman said.
If Plan B could be outlawed, she said, then every CVS and Walgreens dispensing emergency contraception prior to the Supreme Court’s ruling would’ve had to be licensed an abortion facility.
“I am deeply concerned about this position that they are taking and how it’s going to harm Missouri women,” Coleman said.
The Missouri Department of Health and Senior Services said in a statement that “before and following the Supreme Court of the United States’ ruling in Dobbs that overturns Roe v. Wade, Missouri law does not ban the use of contraception methods. RSMo 188.017 criminalizes performing an abortion absent a medical emergency, but this does not include pregnancy preventive measures.”
Sam Lee, director of Campaign Life Missouri, agreed that the state’s abortion ban triggered by the high court’s decision did not change the long-standing definition of abortion in Missouri.
“If Plan B is an abortion, then that would’ve been regulated beforehand,” Lee said. He went on to say that even if Plan B did destroy a fertilized egg instead of preventing fertilization, there is no way to know that.
The law “requires that the intent is to destroy an embryo or fetus in his or her mother’s womb, or to intend to terminate a pregnancy,” Lee said. “You can never intend to do something if you don’t even know if you’re pregnant, … or if you don’t know what the effect of taking the drug would be.”
In a tweet late Wednesday, Gov. Mike Parson wrote: “To address any misinformation: Missouri law has not changed the legality of contraceptives. Contraceptives are not abortions and are not affected by the Right to Life of the Unborn Child Act.”
House Minority Leader Crystal Quade, D-Springfield, on Wednesday asked Schmitt to issue an official legal opinion on whether Missouri’s new abortion ban allows women to be prosecuted for using contraception.
“There is a real danger a politically ambitious or ideologically motivated prosecutor could file malicious criminal charges over contraception use,” Quade said. “That’s why it is imperative for the attorney general to unequivocally explain to all Missourians how he interprets the law and how he intends to enforce it.”
She also said, “Missourians are justified in worrying they could be sent to prison for merely taking birth control pills. … I hope to give some support for Missourians and providers to continue utilizing and prescribing the birth control that is right for them.”
Ƶ hospitals weigh in
Two Ƶ-area hospital systems on Thursday released statements on their interpretation of the law.
BJC HealthCare said it will continue to offer all forms of contraception.
Mercy, a Roman Catholic health system, said, “For victims of sexual assault, Mercy’s highly trained staff does a thorough exam. After appropriate testing, medications that would prevent ovulation or fertilization can be given.”
SSM Health, also a Catholic health system, did not respond to a request for comment before publication.
Dr. Colleen McNicholas, chief medical officer for Planned Parenthood of the Ƶ Region and Southwest Missouri, took to social media on Wednesday telling Missouri residents that birth control is still legal in the state.
“Emergency contraception is not an abortifacient. If you need pills, patches, rings, IUDs, any form of birth control, we are here for you,” McNicholas said. “Today is no different than last week. Birth control is available and legal in the state of Missouri.”
Richard Muniz, general counsel for Planned Parenthood of the Ƶ Region and Southwest Missouri, said it’s been his job to study Missouri abortion laws and make sure Planned Parenthood is in compliance.
It is clear, he said, that abortion is the act of prescribing a drug or device to terminate an embryo implanted in the womb.
“You would have to be taking Plan B or getting an IUD to intentionally terminate a pregnancy. And that’s just not what these drugs and devices are used for,” Muniz said. “You are going to a drugstore to pick up Plan B not to terminate a pregnancy, but to prevent one. That is the entire purpose of birth control and contraceptives.”
Muniz said others are fueling misinformation.
“There’s a lot of confusion that is being spread by pundits and folks who are reading the law very narrowly, out of context, and not understanding the complete package of laws,” he said.
In an interview with the Post-Dispatch on Wednesday, McCaskill blamed Missouri legislators for the confusion.
“I think Planned Parenthood is so anxious to reassure women that everything’s going to be OK — which I completely understand — except I’m not sure it is going to be OK,” McCaskill said. “And I think these people should pay a price for going as far as they had.”