Proposed Pennsylvania Amendment Could Impact Assisted Reproduction

A Proposed Amendment to Pennsylvania’s Constitution Could Have Huge Impact on Assisted Reproduction if Passed

Posted on June 30th, 2022
by Dorota Gasienica-Kozak

An Amendment to Pennsylvania’s Constitution regarding elective abortions is under second consideration in the Senate and advancing toward passage. Although the Bill is aimed at attacking abortion rights, a significant impact on assisted reproduction is likely.

In response to a lawsuit by an abortion industry seeking the requirement of public funding through Medicaid for abortions of low-income women in Pennsylvania, Senator Judy Ward introduced an Amendment to Pennsylvania’s Constitution in January 2021 regarding elective abortions. Believing that Pennsylvania’s laws protecting women’s and unborn children’s lives and health are in jeopardy, the stated goal was to maintain State laws regulating abortion and prevent taxpayer funding of elective abortions. This Amendment, if passed, would have far-reaching impacts beyond its purported goal.

SB 956 Explained

The proposed Amendment (SB 956) would add the following language to Pennsylvania’s Constitution; “[t]he policy of Pennsylvania is to protect the life of every unborn child from conception to birth, to the extent permitted by the Federal Constitution. Nothing in this Constitution grants or secures any right relating to abortion or the public funding thereof. Nothing in this Constitution requires taxpayer funding of abortion.”

Ultimately, this Amendment states that there is no right to abortion or funding for an abortion, regardless of the circumstances (i.e., rape, incest, or the existence of life-threatening conditions). Additionally, it would add a rule to the State Constitution prohibiting public insurance coverage of abortion care. If approved, no Pennsylvanian State Court could safeguard abortion care unless federal protections existed.

However, on June 24, 2022, the U.S. Supreme Court released its decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, leaving the power to determine abortion policy to the states and local lawmakers. From this ruling, approximately twenty-six states will likely ban abortions. Nevertheless, this decision does not just impact abortion; it affects all aspects of reproductive health, including assisted reproduction. The Court’s decision clarifies that abortion does not have federal protection, which means that Pennsylvanian State Courts would have no ability to step in and help safeguard abortions if the Bill passes.

Current Status of SB 956

SB 956 was first considered by the Senate on January 25, 2022, removed from the table on May 25, 2022, went under second consideration on June 6, 2022, and has been removed from the table as of June 28, 2022. Therefore, the Bill currently remains up for possible consideration and may be placed on the Senate’s calendar.

It is easier to pass a Bill in Pennsylvania than in most other states because it only requires a simple majority by both chambers in two consecutive sessions of the General Assembly, and a simple majority by voters in the general election. If most voters approve the Amendment and no legal challenges are raised, it becomes an active part of the State Constitution. Furthermore, the governor has minimal power over Constitutional Amendments and cannot veto them.

SB 956 has passed out of the Health and Human Services Committee in the Senate, so if it passes the General Assembly in two consecutive sessions, Pennsylvanians may see it on the ballot as early as May 2023. If approved by most of the Pennsylvanian voters, it could be implemented within the same year.

Potential Impacts for Infertility and Assisted Reproductive Technology

By rewriting, and thereby changing, the State’s policy, there is a considerable possibility of criminalizing abortions and any perceived harmful activity toward fetuses in Pennsylvania, which could spark a new wave of incarceration. Not only will this increase mortality rates of pregnant mothers and newborns, but it also will be a deterrent against using assisted reproduction for those facing infertility issues, and interfere with reproductive technologies, treatment of ectopic pregnancies, and miscarriage management.

For example, families trying to conceive using IVF may be criminalized for not using a fertilized egg. This is especially probable considering medical professionals in Pennsylvania already have a duty to report to the State the number of eggs they fertilize, implant, and discard. Medical decisions must remain private between doctors and patients so that patients can make the right decisions for their families. However, this new barrier of potential incarceration compounds the already existing IVF barriers, namely money and access.

The proposed language places the rights of fertilized eggs, embryos, and fetuses above the rights of pregnant women. SB 956 would devastate the protection of reproductive choice for those electing to have an abortion and those considering or undergoing assisted reproduction in Pennsylvania. The proposed Amendment would leave assisted reproductive technology that creates an embryo outside the body, such as IVF, with a very uncertain legal status unless laws clarify the status of the embryos’ creation, keeping, and potential destruction.

As the Amendment advances toward passage, it is imperative to consider the direct and indirect effects it may have, and it is advisable to seek the counsel of a knowledgeable ART attorney to help you on your journey.

heARTbeat is a publication of KingSpry’s Adoption Law and Assisted Reproductive Technology Law Practice Group. It is meant to be informational and does not constitute legal advice.