Kansas abortion definition doesn't include ectopic pregnancy termination, AG Derek Schmidt opines

Ending an ectopic pregnancy doesn't constitute an abortion, Attorney General Derek Schmidt wrote in an advisory opinion released Friday afternoon, wading into an issue that has garnered attention amid a proposed anti-abortion amendment to the Kansas Constitution.

Opponents of the amendment, which clarifies that the constitution doesn't confer a right to an abortion, have argued that its passage could implicate ectopic pregnancies. Supporters have largely said the two fall into separate categories.

The opinion places Schmidt, who supports the amendment, in the latter camp.

An ectopic pregnancy occurs when a fertilized egg implants and grows outside of the uterus, generally in the fallopian tube. Because the fertilized egg can't survive outside of the uterus, it is considered a serious medical condition, as future growth could adversely impact nearby organs.

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If not treated, an ectopic pregnancy can be fatal to the mother. An ectopic pregnancy is always fatal to the fetus. About 1% to 2% of all pregnancies in the U.S. are ectopic, though the limited data may underestimate the prevalence, researchers have said.

Schmidt's ruling notes statutes don't specifically address how an ectopic pregnancy is defined. Some definitions in statute would appear to indicate that treatment to address an ectopic pregnancy mirrors an abortion.

In one such definition, an "unborn child" includes from "the moment of fertilization until birth at every stage of biological development" and is a human that has "interests in life, health and well-being that should be protected."

But, by-and-large, Schmidt said definitions under statute require an "unborn child" to be viable or in the uterus — neither of which applies to an ectopic pregnancy.

"On balance, we believe the best interpretation is that the termination of an ectopic pregnancy does not constitute an abortion as defined by Kansas law," Schmidt wrote in the opinion.

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Even if the term abortion were considered to apply to an ectopic pregnancy, Schmidt continued, exceptions exist in current law for abortions if a mother's life is threatened, something that would protect addressing ectopic pregnancies.

His ruling also says treatments to address miscarriages wouldn't constitute an abortion. Kansas law explicitly exempts from the abortion definition treatment to remove "a dead unborn child who died as the result of natural causes in utero, accidental trauma or a criminal assault on the pregnant woman or her unborn child."

Schmidt's opinion came in response to an inquiry from Rep. John Eplee, R-Atchison, who is a doctor. Eplee questioned whether passage of the constitutional amendment would affect treatment for "tubal-ectopic pregnancies, documented miscarriages and fetal demise at any stage of gestation."

What does this change for ectopic pregnancies and Kansas law?

While Schmidt's opinion is general advice that typically caries some weight in the courts, it isn't binding and legislators could elect to change the definition in future laws they pass.

Draft legislation circulated by the National Right to Life Committee, one of the most prominent anti-abortion groups nationally, explicitly exempts an ectopic pregnancy from their abortion definition.

But a bill introduced last session by Rep. Trevor Jacobs, R-Fort Scott, that would ban abortion in nearly all cases defines treatment to address ectopic pregnancies or miscarriages as abortions.

Abortion would still be allowed under those circumstances under the Jacobs bill, however, as long as there is no "reasonable alternative" to save the lives of both the mother and the fetus.

A staffer for the Value Them Both Coalition, the principal group supporting the amendment, was previously recorded at a meeting in Hutchinson telling amendment supporters that lobbyists plan to push the Jacobs bill if the amendment passes. The staffer is no longer employed by the organization.

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"This amendment will mandate government control over private medical decisions and open the door to an extreme ban on abortion that puts women’s lives at risk," Ashley All, a spokesperson for Kansans for Constitutional Freedom, the main anti-amendment group, said in a statement. "No amount of PR can change that."

The Kansas Department of Health and Environment publishes yearly statistics on how many abortions are performed in the state and it is unclear if they count ectopic pregnancy treatment as part of that data.

A KDHE spokesperson said he couldn't immediately provide more information late Friday afternoon.

Andrew Bahl is a senior statehouse reporter for the Topeka Capital-Journal. He can be reached at abahl@gannett.com or by phone at 443-979-6100.

This article originally appeared on Topeka Capital-Journal: Kansas abortions are separate from treating ectopic pregnancy, AG says