IFLG-Attacks-on-Roe-v-Wade-Threaten-Rights-to-Fertility-Treatment-Rich-Vaughn

Attacks on Roe v Wade Threaten Americans' Rights to Fertility Treatment

Often at this time of year, I find myself thinking about years past, how blessed I have been to work in a field that still fills me with passion, and how exciting it is that the miracles of assisted reproduction are increasingly available and accessible to all.

But, while I’m no less passionate about IFLG’s work to ensure would-be parents and their families are legally protected, this New Year brings some troubling clouds on the horizon.

Reproductive rights in these United States are under attack, from right-wing lawmakers bent on using social divisions to gain and retain political power and from a vocal voting minority determined to instill extreme religious beliefs into public policy and governance. Now, several justices on the conservative-majority U.S. Supreme Court seem to be signaling their willingness to disregard decades of established legal precedent and leave each state’s political majority to decide whether American women have the basic human right of autonomy over their own bodies.

For the past few years, we’ve been reporting on the Court’s rapid rightward shift, designed and implemented by conservative political powers and accelerated with Trump’s appointment of three conservative justices in a three-year period, creating a 6-3 conservative majority. After a decades-long campaign focused on putting conservative judges on the bench, anti-choice activists and lawmakers seized on the recent sudden shift in the Court’s composition as their opportunity to attack women’s constitutional right to abortion. Dozens of Republican-majority state legislatures launched a barrage of clearly unconstitutional anti-abortion laws, with the ultimate goal of forcing a Supreme Court challenge and overturning Roe v. Wade, the case that established a woman’s right to choose in 1973. Several states have enacted abortion bans, only to have the laws stayed by the courts because they violated the constitutional rights established in Roe and upheld in 1993 in Planned Parenthood v. Casey. Many of those stayed state laws would take effect immediately were Roe overturned.

With two recent Court decisions, it appears the attacks may finally be hitting their mark.

Supreme Court Allows Vigilantes to Sue Abortion Providers

 Texas SB8, which took effect on September 1, 2021, is one of a number of so-called “heartbeat bills” enacted by conservative state legislatures designed to challenge a core principle of “viability” in Roe, and later in Casey, which establishes a woman’s right to an abortion up to the time the fetus can reasonably be expected to survive outside the womb, or about 24 weeks. The Texas law, considered one of the most extreme bans in the country, makes abortion illegal from the time “cardiac activity” can be detected in the fetus, or about six weeks—before most women would be aware they were pregnant. The law makes no exceptions for rape or incest and clearly violates the constitutional rights established in Roe.

But the Texas law includes a new “twist” in its enforcement mechanism, deliberately crafted to subvert legal challenges. Rather than making state authorities responsible for enforcement of the law, it instead essentially deputizes private individuals to sue any person or organization—doctors, clinics, friends, Uber drivers—that aids or abets an abortion, providing a bounty of $10,000 for each successful lawsuit, with costs and attorney fees charged to the losing party. The provision achieves two things: It prevents plaintiffs from suing state authorities, since the state has no legal role in enforcing the law, effectively eliminating the right to legal redress; and it creates an ever-present threat of financial penalties that would effectively force most abortion providers or advocacy groups to shut down.

After the U.S. Supreme Court allowed the Texas law to go into effect, women’s healthcare providers challenged the enforcement provision in Whole Woman’s Health v. Jackson, asking among other things that providers be allowed to sue state court officials to reject “vigilante” SB8 lawsuits by private individuals. On December 10, the Court ruled that abortion providers may not sue the state—meaning the Texas legislators' strategy to deny legal redress worked. Rather, the decision gives providers the right to sue state licensing agencies that would be responsible for stripping agencies of their licenses, after the agency had lost one of those vigilante lawsuits.

The inadequacy of the ruling in providing any relief for the providers was immediately apparent:  one of the few remaining Texas providers said, despite the ruling, it would not resume operations unless the law were overturned, due to the financial burden of fines and legal fighting lawsuits.

In addition to the immediate issue of abortion rights, legal scholars have raised questions about the precedent established by Texas’ vigilante lawsuit model: If a state can successfully avoid legal challenges by deputizing private citizens to enforce the law and subvert the constitution, why not use similar mechanisms to attack other constitutional rights, as California Governor Gavin Newsom has already suggested in regard to life-saving gun control measures.

Justices Question Medical Standards of Fetal Viability in Mississippi Case

On December 1, the Supreme Court also heard oral arguments in Dobbs v. Jackson Women’s Health Organization, a challenge to Mississippi’s abortion law, which bans abortions after 15 weeks—well before the established “viability” standard of 24 weeks, at which medical professionals say a fetus can survive outside the womb. In crafting the bill, Mississippi legislators said openly they were doing so “because we have new Justices.”

Were the Court to uphold the Mississippi law, the decision would either gut the viability standard or overturn Roe entirely. In many states, restrictive abortion laws, on hold due to federal court rulings, would immediately take effect, and red-state lawmakers would unleash an avalanche of new ones.

Without a doubt, reproductive rights Americans have taken for granted for decades are now at risk.

The burden of being denied the right to an abortion would not be felt equally by every woman. Many states would continue to provide legal abortion services and to protect the rights of women to access those services. California leaders have called for creating an abortion “sanctuary,” providing services and support for women traveling from other states. In New York, Governor Kathy Hochul has vowed to create a “safe harbor” where women’s health and wellbeing are protected, as we reported in October.

Overturning Abortion Rights May Make IVF, Surrogacy Illegal

But many women living in states where abortion is illegal, particularly those who are low-income or without family support, would not have resources, time or ability to travel out of state for services. In some cases, since childbirth is inherently riskier than abortion, women would die giving birth to babies they did not wish to carry.

But the challenge to Roe v. Wade is about more than abortion rights.

If Roe v. Wade is overturned, many of the miraculous technological advances that today help millions of people suffering from infertility, as well as single and LGBTQ people, become parents could be banned. Even fertility preservation, the use of cryopreservation or freezing to preserve sperm, eggs or reproductive organs in the event of disease, injury or simply as a family-planning strategy, could become illegal if the right to abortion is overturned.

For example, in vitro fertilization, or IVF, a common treatment for infertility, typically results in the creation of multiple embryos. Typically, not all are used. The reproductive specialist, using advanced tools, selects the strongest, most vital embryos for implantation into the uterus of the intended mother or a surrogate. While once best practice would be to implant multiple embryos to increase the odds of a successful pregnancy, today better technology and higher success rates dictate that only a single embryo be implanted in most cases, preferable for the health of both mother and child.

But what happens to those unused embryos? Those deemed unviable are discarded. In some cases, intended parents opt to preserve via cryopreservation “extra” viable embryos for potential use at a future time. Years later, they may decide to use the embryos to have another child. Or they may not.

The principle of fetal viability now under attack at the Supreme Court is relevant in these kinds of fertility treatments. In banning abortion earlier and earlier in the pregnancy, the laws are protecting the rights of the fetus before the fetus would be able to survive outside a woman’s body—in some case placing the rights of the fetus above the rights of the woman carrying the pregnancy. If the rights of a fetus are protected at six weeks, when it would die outside of the womb, why stop there? Why not protect those rights from the point of conception?

Loss of Abortion Rights Would Open Door for Fetal 'Personhood' Laws

Some states already have gone there. Under Missouri’s “personhood” law, courts have ruled that unborn embryos are persons for the purposes of wrongful death claims, manslaughter and first degree murder charges. Under Louisiana’s law, yet to be tested in court, unborn embryos are designated “juridical persons” and are prohibited from destruction, with rights to sue and be sued, with disputes to be resolved in the embryos’ “best interests.”

So far, with the constitutional protections of Roe and Casey intact, women’s rights to abortion have not been denied under state personhood laws. But if the conservative Court invalidates the fetal “viability” standard, Americans’ access to treatment for infertility and other reproductive services may hinge on when each state decides human life begins.

Overturning Roe Risks Dreams of Parenthood for Infertile, Single, LGBT People

As many of my readers know, I decided to launch my fertility law practice after my husband, Tommy, and I became parents of twin boys, using egg donation, IVF and surrogacy. As a young gay man growing up in the Midwest, I assumed I would never have the opportunity to have a family, to be a dad. I accepted the reality, but with some regret.

But years later, reproductive technologies had advanced so much that so-called “test-tube” babies were no longer a novelty. Thousands of people were able to overcome infertility, and even our LGBTQ community was experiencing a “gayby boom.” As we learned more about the options, we gradually realized that what had seemed like an impossible dream, of becoming parents, could be a reality. The process of becoming dads the way we did was not easy, and it was not cheap, particularly 14 years ago when our boys were born. But it was worth every bit of time, money and emotion we put into it. It was a dream come true.

It was a dream that may be denied to others.

Today, as we wait for the Court’s decision on the Mississippi law, expected in May 2022, I wonder if Americans realize all that is at stake. I wonder if the thousands of people who have undergone treatment for infertility, or who have frozen eggs or sperm in advance of cancer treatment, or who have become moms or dads through the miracle of assisted reproduction, understand that, with a single decision, all of those possibilities could be gone.  

We never know with certainty how a Supreme Court justice will rule. Chief Justice Roberts and Justice Sotomayor have both expressed concerns about public perception of the court and its politicization. We do know the legitimacy of the Court depends upon the faith of the American people, and that not even the Justices are immune to public opinion. As we look forward to 2022 and all the miraculous possibilities the coming year holds, if we can do nothing else, we must make sure that every American knows exactly how much all of us have to lose.

 

 

 

 

 

Richard Vaughn
rich@iflg.net

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

Peiya Wang
PEIYA WANG(王培娅)
Paralegal (律师助理)

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya moved to the United States in 2012 to attend Northeastern University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015, received her paralegal certification from UCLA Extension, and obtained her second Master of Science degree in Legal Studies from Loyola Law School. Peiya relocated back to her hometown, Beijing, China in 2019 and works from IFLG’s Beijing office. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Katie Deaquino
KATIE DEAQUINO
Senior Paralegal

Katie is a Senior Paralegal with IFLG and has dedicated over sixteen years to the areas of surrogacy and reproductive law. She received her Paralegal Certificate from Coastline Community College and has worked with some of the top law firms in the assisted reproduction community. Katie is also a commissioned Notary Public. With IFLG, Katie manages Surrogacy, Egg Donation, and Parental Establishment cases and provides support to other IFLG team members. Katie truly enjoys helping others build their families through assisted reproduction and is thankful she has had the rewarding experience of assisting IFLG clients. Katie often spends her free time with her Husband, four young children and her bulldog “Bella”.

Luis Sosa
LUIS SOSA
Paralegal

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University which he received in 2013, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. Luis has worked for IFLG in both Los Angeles as well as San Francisco, and is currently based in Dallas, Texas. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

Alexander Espinoza
ALEXANDER ESPINOZA
Legal Assistant

Alexander joined IFLG as a legal assistant in 2019, where he manages surrogacy, egg donation and parental establishment cases. Alex is bilingual in English and Spanish and has been in the legal field for 23 years. Alex is excited to join the IFLG team and pursuing his will to help others in the reproductive law process. In his spare time he loves spending time with his family and friends, being outdoors, road trips, loves music and dancing.

Toni Hughes
TONI BOONE
Paralegal

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart
MIESHA COWART
Financial Coordinator

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.

KIM DEVEREAUX
Paralegal

Kim has over 30 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Rich Vaughn
RICHARD B. VAUGHN
Founder

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth Tamayo
ELIZABETH TAMAYO
Paralegal

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny Chien
SUNNY CHIEN
Paralegal

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.

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Phone:  +1 844 400 2016

Email:  info@iflg.net

Website:  www.iflg.net

Molly O'Brien
MOLLY O'BRIEN
Partner

Fertility law attorney Molly O’Brien began working in the field of assisted reproduction technology (ART) in 2005, at an egg donation agency and a surrogacy agency where she became familiar with all aspects of in-vitro fertilization, egg donation and the financial aspects of surrogacy. Since becoming an attorney in 2011, Molly has drafted and negotiated surrogacy, egg donation, sperm donation embryo donation agreements for hundreds of her clients all over the world.

Phoebe Sadler
PHOEBE S. SADLER
Associate

Fertility law attorney Phoebe Sadler has a background in family law and has been practicing exclusively in the area of assisted reproduction technology (ART) law since 2018.

Rubina Aslanyan
RUBINA ASLANYAN
Paralegal

Rubina has an extensive background in the legal field as a paralegal in Family Law and has worked in surrogacy and assisted reproduction law since 2012. Her area of focus is in managing and assisting clients with surrogacy, egg donation, and parental establishment cases for many of IFLG’s domestic and international clients. During her spare time, Rubina enjoys spending time with her family and dog Bella, traveling and cooking.

Cara Stecker
CARA STECKER
Senior Paralegal

After receiving her paralegal certificate in 2005, Cara began working in assisted reproductive law. During the fifteen years Cara has worked in this field, she has gained a wide range of experience and knowledge that she uses to help better assist clients and those involved in the assisted reproductive journey. Cara’s primary roles involve managing parental establishment matters and coordination with IFLG’s Of Counsel attorney network, drafting contracts and parental establishment court documents and providing support to other team members. Cara finds great joy in being a small part of a team of caring people who help others achieve their dream of having a family. In her spare time, Cara enjoys spending time with her husband and three children, watching her children play the sports they love, and she enjoys, running, cycling and exploring the outdoors in the sun.

Stephanie Kimble
STEPHANIE KIMBLE
Paralegal

Stephanie received her BS in History and Political Thought from Concordia University Irvine in 2015 and her Paralegal Certificate from University of San Diego later that same year. She has been working as a Paralegal since 2016 in Family and Reproductive Law. She is excited to be part of International Fertility Law Group working on managing Surrogacy, Egg donation and Parental Establishment Cases.

Trish Pittman
TRISH PITTMAN
Assistant Financial Coordinator

With more than 20 years of experience in the field of accounting, Trish joined the IFLG team in 2019 as Assistant Financial Coordinator. Her client-facing focus at IFLG is to assist with all client trust accounting. Trish is the mother of two daughters and enjoys spending time teaching and learning new things from them. In her free time, she loves long walks in the park and reading suspense and mystery novels.

Elsa Jimenez
ELSA JIMENEZ
Legal Assistant

Elsa joined IFLG as a Legal Assistant in 2019, bringing more than 35 years of experience working in the legal profession (concentrating in tort and litigation matters). At IFLG she assists surrogates with their surrogacy and parental matters. The oldest of five siblings, born and raised in East Los Angeles to Mexican immigrant parents, Elsa loves “seeing the beauty of families forming” through assisted reproductive technology. She and her husband Carlos have four children and one grandson. Elsa enjoys jazz and ’80s music, being outdoors in nature, collecting teacups and tea pots, and spending time with her close-knit family.