Overview

Would the bill prohibit in vitro fertilization (IVF)?

No. Since 1986, state law has prohibited the intentional destruction of a viable (i.e. living) in vitro fertilized human ovum. La. R.S. § 9:129. This bill would not change that. Fertility specialists can continue to perform ethical IVF procedures in Louisiana.

Would the bill ban contraceptives?

No. The bill does not ban contraceptives. The bill would ban the use of abortifacients after conception if willfully used to cause the death of the child.

Could anyone who has been involved with an abortion in the past be prosecuted?

No. Section 5 of the bill explicitly prohibits retroactive enforcement: “This Act applies to crimes committed on or after the effective date of this Act.” Furthermore, the Louisiana Constitution prohibits retroactive enforcement. Art. I, § 23.

Could the bill punish women who have had miscarriages?

No. Nothing in the bill would in any way apply to accidental or natural deaths.

Could a mother forced into an abortion be convicted?

No. The bill explicitly provides that a mother forced into an abortion under duress is not subject to criminal liability. Page 2, lines 15-23. Instead, the bill would allow for prosecution of the person who forced her.

Would the bill allow doctors to deal with medical emergencies like ectopic pregnancies?

Yes. The bill does not alter existing Louisiana caselaw, which provides that “[a] person is excused from criminal liability if he acts under a duress of circumstances to protect life… in a reasonable manner and with no other acceptable choice.” State v. Recard, 704 So.2d 324, 328 (La. App. 3 Cir. 11/26/97). See also State v. Smith, 777 So. 2d 584, 587 (La. App. 4 Cir 12/20/00) (“T]his doctrine has been applied in circumstances other than those enumerated in La. R.S. 14:18”).

Could a mother who willfully killed her own child go to jail?

The bill does not establish penalties. The bill simply provides equal protection of the laws to all persons before birth by removing discriminatory provisions that allow for abortion. This ensures the same homicide laws protecting persons after they are born would equally protect persons before birth.

Whether a mother who willfully killed her own child would be investigated, prosecuted, convicted, or sentenced—and for what, if anything—would be up to the justice system that already exists to protect born persons: law enforcement, prosecutors, grand juries, trial juries, judges, appellate courts, and the governor.

Is this bill unconstitutional?

No. The Supremacy Clause of the Constitution provides, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof… shall be the supreme Law of the Land…” U.S. Const. Art VI, Clause 2. Roe v. Wade was not made “in pursuance of” the U.S. Constitution: the recently leaked draft of the Supreme Court’s majority opinion in Dobbs agrees. Therefore, Roe is not the supreme law of the land and states are not bound by it.

Does this bill defy the U.S. Supreme Court?

No. As a constitutional institution, state officials are oath-bound to follow the Court insofar as the Court follows the Constitution, but not farther. Of course, deference should be given to the Court in interpreting the Constitution, but not unconditional submission. If the Court demands unconditional submission, it makes itself a tyrant. If we grant it unconditional submission, we make it an idol. When the Court egregiously fails to restrain its authority within its legitimate bounds, like it has in Roe v. Wade, its actions impel public officials obliged to fulfill their own constitutional and God-given duties to pursue other avenues to do so.

What if the federal government cut funding or tried to enforce Roe?

If a Biden administration tried to bring sanctions against Louisiana, there could be a cost. But is our “peace” so sweet as to be purchased at the price of permitting the massacre of these innocents? If protecting them isn’t worth making sacrifices for, what is? If we are not willing to sacrifice our personal peace and affluence in order to save the lives of more than 7,400 innocent children every year in this state, are we not asking them to lay down their lives for our sake? If we do so, are we any longer worthy as a society to be called “the home of the brave?”