Louisiana IUD Bill

On May 6 2022, a Twitter screenshot posted to Imgur suggested that Louisiana planned to vote to criminalize IUDs. No link was provided, but the screenshot of a tweet by Pam Keith was originally shared on May 5 2022:

Keith’s tweet referenced a form of long-acting birth control (intra-uterine devices, or IUDs). Keith stated that the state of Louisiana would seek to charge women with murder for using IUDs as birth control.

On May 6 2022, a similar post appeared on Reddit’s r/TwoXChromosomes:

On Google Trends, a search for “Louisiana” for the time period between May 5 and 6 2022 indicated a spike in related searches. They included:

• “Louisiana IUD bill:
• “IUD Louisiana:
• “IUD;
• “Louisiana IUD ban,” and;
• “Louisiana criminalize IUD.”

Reddit’s above-linked post pointed to a May 5 2022 article from Baton Rouge’s WRKF, “Louisiana bill would allow murder charges for abortions; opponents call it ‘barbaric.'” It reported:

The Louisiana House Committee for the Administration of Criminal Justice advanced legislation Wednesday [May 4 2022] that would redefine personhood to begin at the moment of fertilization and would allow prosecutors to charge anyone who undergoes or provides an abortion with murder.

HB813 by Rep. Danny McCormick (R-Oil City) would also allow the state to disregard any federal court rulings contradicting the new law and would grant the legislature the right to impeach and remove any state judges that attempt to block it from taking effect.

[…]

Opponents of the bill said its broad scope would also criminalize in vitro fertilization, intrauterine birth control devices (IUDs) and emergency contraception as well.

According to WRKF, the bill “would allow prosecutors to charge anyone who undergoes or provides an abortion with murder,” and opponents of the bill claimed that the vague wording would also criminalize “intrauterine birth control devices (IUDs) and emergency contraception.” That reporting provided the name of the bill in question, HB 813, and linked to it.

Quoted material in the article pointed to a “trigger law” already in place in Louisiana. After the draft decision to overturn Roe v. Wade was leaked, the New York Times explained trigger laws in the context of the legality of abortion:

If the Supreme Court overturns Roe v. Wade, it would not outlaw abortion. Instead, states would be able to individually determine the procedure’s legality.

Thirteen states across the country have signaled their readiness to ban abortion by passing so-called trigger laws, which would effectively ban abortions almost immediately after a decision from the Supreme Court to overturn Roe v. Wade.

“Some states that are very strongly anti-abortion, having been frustrated that they couldn’t ban abortion because of Roe v. Wade, decided to pass laws that would be on the books and operative immediately in the future event that the court ever removed the protections of Roe,” said Donna Crane, an adjunct professor at San José State University with an expertise in women’s rights and reproductive rights.

Louisiana was listed as one of 13 states with trigger laws in place, and the outlet added:

A law in Louisiana would ban anyone from performing an abortion or providing a woman with drugs that could cause an abortion. The state would allow an abortion to prevent serious injury or death, but the law says a “physician shall make reasonable medical efforts” to save the life of the mother and the unborn child.

That excerpt’s first four words were hyperlinked, leading to an existing law in the state of Louisiana. That law held in part:

§1061. Abortion; prohibition

A. The provisions of this Act shall become effective immediately upon, and to the extent permitted, by the occurrence of any of the following circumstances:

(1) Any decision of the United States Supreme Court which reverses, in whole or in part, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed. 2d 147 (1973), thereby, restoring to the state of Louisiana the authority to prohibit abortion.

(2) Adoption of an amendment to the United States Constitution which, in whole or in part, restores to the state of Louisiana the authority to prohibit abortion.

[…]

C. No person may knowingly administer to, prescribe for, or procure for, or sell to any pregnant woman any medicine, drug, or other substance with the specific intent of causing or abetting the termination of the life of an unborn human being. No person may knowingly use or employ any instrument or procedure upon a pregnant woman with the specific intent of causing or abetting the termination of the life of an unborn human being.

D. Any person in violation of this Section shall be prosecuted pursuant to the effective provisions of R.S. 14:87, and shall be subject to the penalties provided in R.S. 40:1061.29.

E. Nothing in this Section may be construed to prohibit the sale, use, prescription, or administration of a contraceptive measure, drug or chemical, if it is administered prior to the time when a pregnancy could be determined through conventional medical testing and if the contraceptive measure is sold, used, prescribed, or administered in accordance with manufacturer instructions.

[…]

I. The following terms as used in this Section shall have the following meanings:

(1) “Fertilization” means that point in time when a male human sperm penetrates the zona pellucida of a female human ovum.

(2) “Pregnant” means the human female reproductive condition, of having a living unborn human being within her body throughout the entire embryonic and fetal stages of the unborn child from fertilization to full gestation and childbirth.

With that context, Louisiana’s “trigger law” defined pregnancy as occurring “from fertilization to full gestation,” and held that no “person may knowingly use or employ any instrument or procedure upon a pregnant woman with the specific intent of causing or abetting the termination of the life of an unborn human being.” Consequently, IUDs indeed reasonably fell under the definition of an “instrument” which could disrupt fertilization.

According to Britain’s National Health Service (NHS), IUDs are believed to function in two ways, one of which was addressed in Louisiana’s trigger law:

The IUD … alters the cervical mucus, which makes it more difficult for sperm to reach an egg and survive. It can also stop a fertilised egg from being able to implant itself.

As for Louisiana’s bill “banning IUDs,” a May 12 2022 action was pending as of May 6 2022. HB 813 did not mention IUDs in its text, but the “Abolition of Abortion in Louisiana Act of 2022” (which also eschewed the separation of church and state) began:

Section 2. Acknowledging the sanctity of innocent human life, created in the image of God, which should be equally protected from fertilization to natural death, the legislature hereby declares that the purpose of this Act is to:

(1) Fully recognize the human personhood of an unborn child at all stages of development prior to birth from the moment of fertilization.

(2) Ensure the right to life and equal protection of the laws to all unborn children from the moment of fertilization by protecting them by the same laws protecting other human beings.

(3) Recognize that the United States Constitution and the laws of the United States are the supreme law of the land.

Moreover, a brief 1990 news article (“Abortion Bill In Louisiana Would Criminalize IUD Use”) described a similar controversy over banning IUDs in Louisiana in 1990. A 1991 article in a medical journal, “ACLU: strict anti-abortion law could also ban contraceptives,” said in its abstract:

In states that pass very restrictive abortion laws, contraceptives may be outlawed as well. A Louisiana law prohibits abortion, even to save the life of the mother, and defines the moment of conception to be contact between a spermatozoan and an ovum. The law carries a maximum 10 year prison sentence and a $100,000 maximum fine. According to this definition, oral contraceptives, IUDs and Norplant would all be considered abortifacient and would thus be illegal.

Myriad social media posts and a viral tweet claimed the state of Louisiana sought to pass a bill “to criminalize IUDs, and plans on charging women with murder for using them.” While IUDs were not explicitly mentioned in HB 813, existing law defined personhood as occurring at the moment of fertilization, not implantation. Moreover, the bill’s language prohibited use of “any instrument or procedure upon a pregnant woman with the specific intent of causing or abetting the termination of the life of an unborn human being.” Consequently, HB 813 (in conjunction with existing law) appeared to prohibit the use of IUDs.