Overturning Roe V. Wade: Here’s How It Could Impact Fertility Treatments And IVF

Topline

The Supreme Court overturned Roe v. Wade on Friday, a monumental decision that’s already rolling back abortion rights in many states and could possibly make it harder for Americans to access other areas of reproductive medicine as well, including fertility treatments like in vitro fertilization (IVF).

While abortion bans don’t explicitly target IVF, critics fear their language could be interpreted to … [+] outlaw the procedure.

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Key Facts

While overturning Roe v. Wade will not automatically restrict access to assisted reproductive technology (ART) like IVF, experts told Forbes the broad or imprecise language used in some state-level abortion bans could possibly include the procedures.

The wording of laws in some states risks unintentionally impairing access to ART as they “fail to reflect biological reality” or do not consider the implications of the law beyond abortion, Sean Tipton, the chief advocacy, policy and development officer for the American Society for Reproductive Medicine (ASRM), told Forbes.

The wording or interpretation of some state laws could throw the legality of IVF—where surplus embryos are frozen or discarded—into question if Roe is overturned, particularly in states pushing to grant fetuses, embryos or fertilized eggs similar rights to children, typically through so-called fetal “personhood” bills.

The laws also pose a threat to standard IVF procedures designed to safeguard both parent and unborn child like selective reduction, which lowers the number of fetuses in a single pregnancy to boost the chances of success, said Seema Mohapatra, a health law and bioethics expert at Southern Methodist University.

While many professionals don’t consider these procedures to be abortion—the pregnancy and a live fetus remains—Mohapatra said selective reduction would definitely count as abortion in some states like Texas, adding that there is an “immediate risk” of losing access to it.

Tangent

Overturning Roe could also worsen existing inequalities when it comes to accessing reproductive medicine, Mohapatra warns, and not just for people struggling with infertility. Black women, for example, experience greater levels of infertility than white women and seek fertility treatment less often. Restrictions could make accessing IVF more expensive, for example, by limiting the number of embryos made or implanted, leading to lower chances of successful pregnancy, more IVF cycles and more costs. Other people, such as members of the LGBT+ community, will often make use of ART to have children.

Key Background

Overturning Roe v. Wade will not automatically outlaw ART and IVF. However, a number of states have “trigger laws” in place that could outlaw abortion if Roe v. Wade is overturned, including Kentucky, Texas and Louisiana. These states intend to explicitly ban abortion at any point after fertilization, and will define the life of an “unborn child” or “unborn human being” as starting at fertilization. While some states’ bills explicitly exempt birth control measures from applying under the abortion ban, they do not explicitly exempt IVF by name. (Alabama enacted an abortion ban that’s now blocked but will likely take effect if Roe’s overturned, which was constructed to exempt IVF.) Oklahoma, which became the first state to completely ban abortion in May, also now bans the procedure starting at fertilization, which has already raised concerns among fertility experts even as the bill’s sponsor has said lawmakers have no intention of targeting IVF. Beyond straightforward abortion bans, “fetal personhood” bills that grant fetuses and embryos the same legal rights as humans have out of the womb, could become more common if Roe v. Wade is overturned, which could provide another pathway for IVF to be targeted if the laws don’t specifically exempt it. The pro-abortion rights Guttmacher Institute reports six states have so far introduced personhood bills in 2022.

What We Don’t Know

The status of embryos. The wording of some state laws restricting abortion could possibly be read so that they encompass ex vivo—outside the living body—embryos, Stanford Law School professor Hank Greely told Forbes. This could possibly restrict access to IVF or the preimplantation genetic tests used to select embryos based on disability. Greely said it’s “unlikely” a judge would be inclined towards such a reading, though noted embryo selection based on the lack of a disability—notably trisomy 21, or Down syndrome—might be a possible exception. New legislative efforts to protect ex vivo embryos are possible but unlikely to succeed, Greely added. IVF and other ARTs are generally politically accepted and “most anti-abortion people don’t care about ex vivo embryos,” particularly when they are created to help people have children, Greely explained. “They like people having babies.”

Contra

Lawmakers behind bills that have been flagged for their potential impacts on IVF have so far denied that the abortion bans could impact the procedure. “The bill clearly defines abortion as terminating the pregnancy of a woman. So there’s no way that it can be interpreted as affecting what’s going on in a lab,” Oklahoma state Rep. Wendy Stearman (R), who sponsored the state’s abortion ban that has already taken effect, told Politico. “It is not something that has ever been considered so far as I know. … I don’t expect it will be, and if for some reason it was brought up, I don’t think it would be successful.”

Big Number

83,946. That’s the number of infants born in the U.S. in 2019 who were conceived through ART, including IVF, according to the Centers for Disease Control and Prevention, making up 2.1% of all infant births that year.

News Peg

The Supreme Court overturned Roe v. Wade on Friday as part of a case concerning Mississippi’s 15-week abortion ban and whether states can restrict the procedure even before a fetus is viable. Justice Samuel Alito delivered the court’s opinion, which said Roe was “egregiously wrong” and argued the case should be overturned because the right to an abortion is not expressly stated in the Constitution or “deeply rooted in this Nation’s history and tradition.” Four justices—Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett—signed on to Alito’s opinion, Chief Justice John Roberts issued a separate concurrence agreeing with the judgment and the court’s three liberal justices dissented. The decision came after Politico leaked a draft opinion from February suggesting the court would take such a step and overturn Roe entirely, prompting a wave of outcry from the abortion rights advocates and increased efforts from states to both restrict and shore up abortion access.

Further Reading

How Americans Really Feel About Abortion: The Sometimes Surprising Poll Results As Supreme Court Overturns Roe V. Wade (Forbes)

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