March 2023 Update
A ban has been enacted on in-state abortion care. The import of these bans for the practice of reproductive medicine and, specifically, the use of Assisted Reproductive Technology (ART) to build families, varies on a state-by-state level. While the majority of states’ abortion ban statutes are applicable in the context of a pregnancy, many state laws also include definitions stating that “personhood” begins at fertilization or even conception. Such definitions -- whether intentionally or not -- have the potential to implicate and even ban the use of ART, including in vitro fertilization (IVF), though some states have taken steps to carve this out as allowable. In a growing number of states, statutory restrictions severely limit access to abortion care and implicitly threaten the unhindered practice of reproductive medicine.
Proposals restricting access to reproductive care
In yet another example, under the auspices of providing clarification on the status of abortion care in the state, Oklahoma’s legislators are considering legislation that would codify exceptions to the state’s absolute abortion ban in cases involving rape or sexual assault, as long as the crime was reported to law enforcement (a non-starter, as earlier noted, for many victims of crime), incest if reported to law enforcement, the prescription and use of contraception prior to a medical test confirming a pregnancy, procedures after a miscarriage, removal of an ectopic pregnancy, and in the event that the pregnant person faces death or “serious risk of substantial and irreversible physical impairment of a major bodily function.”
The Supreme Court’s Dobbs decision triggered a legal ban criminalizing abortion in Oklahoma. Prior to this, Oklahoma enacted a series of limitations and hurdles to abortion care, creating a confusing and contradictory legal landscape within the state. In August of 2022, the state enacted a law that carried harsh criminal penalties for doctors and others who perform or help to perform abortions.
as of July 2022
Trigger Law Statutory Cite(s)
(2021), as amended by S.B. 1555
(2022). See also the Oklahoma Attorney General’s certification regarding the Supreme Court’s decision, as required by these laws. Other recently enacted abortion restrictions, including H.B. 4327
(2022) are technically not “trigger bills” but limit access to abortion in the state.
Does this law have a potential impact on IVF/Reproductive medicine?
Why or why not?
- Seemingly no impact on IVF or other ART procedures because the criminal law (Okla. Stat. Tit. 21, § 861) authorized by the trigger bill applies only in the context of a pregnancy and, therefore, would not apply to embryos created in vitro. The trigger laws expressly permit the enforcement of an existing criminal law (Okla. Stat. Tit. 21, § 861) which prohibits abortion in the state and is analyzed in more detail below. The laws also repeal numerous existing statutes related to the performance of abortion in Oklahoma, which we have described here.
Does this law explicitly reference IVF, assisted reproductive technology or reproductive medicine?
There are no explicit references to IVF or reproductive medicine services in the trigger law.
Are there any penalties in this law that could apply to ART procedures?
Neither the trigger laws repealing various state statutes nor the criminal law permitted by these laws include definitions.
Do the definitions/terms of the trigger law apply to other areas of state code?
What is the “trigger” for this law to take effect?
Upon certification from the Attorney General that Roe v. Wade has been overruled by the U.S. Supreme Court, the law permits the enforcement of Okla. Stat. tit. 21, §861
, and the repeal of various statutes related to the performance of abortion.
Key provisions: What does the law prohibit and when does it apply?
The criminal law (Okla. Stat. tit. 21, § 861
) prohibits prescribing, advising, procuring, or administering any medicine, drug, substance, instrument, or other means to any woman with the intent “to procure miscarriage of such woman” unless it is “necessary to preserve her life.”