Amendment 3 Gives Missourians the Opportunity to Protect Their Rights to Fertility Treatment
In the past 27 months, the U.S. Supreme Court and the Alabama Supreme Court have handed down rulings which have created apprehension amongst patients seeking fertility treatment as well as clinics providing that treatment. On November 5, Missouri voters can address that concern by voting Yes on Amendment 3. This constitutional amendment would guarantee reproductive freedom and would, at least indirectly, give much greater protection to fertility treatment, such as in vitro fertilization (IVF).
The proposed constitutional amendment provides, in part,
The Government shall not deny or infringe upon a person’s fundamental right to reproductive freedom, which is the right to make and carry out decisions about all matters relating to reproductive health care…
Reproductive health care “includes, but is not limited to, prenatal care, childbirth, postpartum care, birth control, abortion care, miscarriage care, and respectful birthing conditions.”
Amendment 3 also provides that the right to reproductive freedom shall not be restricted “unless the Government demonstrates that such action is justified by a compelling governmental interest achieved by the least restrictive means” and that any such restricted shall be presumed to be invalid.
Fertility treatment, such as IVF, is not specifically mentioned in this proposed Amendment. However, a reasonable interpretation of the phrase “reproductive health care” should include fertility treatment.
What does this potentially mean for fertility patients?
If Amendment 3 passes, it would be extremely difficult for the state legislature to pass any law that restricts access to IVF, or that restricts a person’s right to determine what to do with their embryos. It would also be very difficult for a court in Missouri to rule that any law could be enforced in a way that restricts access to fertility treatment or that tells a person what they can or cannot do with their embryos. This freedom of choice about fertility treatment would have much greater protection than it does now.
If, on the other hand, Amendment 3 does not pass, and if the Missouri legislature were to pass a bill that characterizes an embryo as a person or a child, then fertility treatment that involves IVF or embryos could be severely curtailed. If Amendment 3 does not pass and the Missouri Supreme Court were to rule that embryos are persons, then IVF patients and clinics in Missouri would face daunting challenges in IVF treatment. For example, the law could prevent or restrict clinics from storing embryos, and Missouri clinics might stop their IVF programs as a result of concern about liability.
The arguments against Amendment 3 primarily have to do with abortion. We are not advocating a position on this very personal moral issue. Our concern is for patients who are simply trying to build their families and need the help of fertility treatment to do so. For those patients, the right to freedom of choice in their fertility care is critical. We believe anyone who shares that concern should vote yes to Amendment 3.
*This analysis represents our opinion. It is not fact. The purpose of this blog is to help our clients and anyone else understand the potential impact of Missouri’s Amendment 3 on fertility treatment.
