16 Aug 2022 Does Supreme Court’s Abortion Decision Threaten Right to Fertility Treatment?

The U.S. Supreme Court’s 6-3 decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, the 1973 case establishing women’s constitutional right to choose, had an obvious and almost immediate impact in halting abortion services in much of the United States. But the June 24, 2022, decision continues to ripple, and the ultimate impact on fertility treatments such as IVF and fertility preservation as well as other reproductive technologies such as contraception remains to be seen.

Nearly every day since the Supreme Court’s Dobbs decision stripping American women of their right to bodily autonomy has brought new reports of the resulting pain, death and chaos in the U.S. health system and in the day-to-day lives of American families. In several states with so-called “trigger laws,” near-total abortion bans took effect as soon as the Court struck Roe down. Other states, such as Michigan, are struggling to decide whether decades-old, outdated laws superseded by Roe in 1973 are now in effect. Progressive states with the political will to defend women’s equality responded to the Court’s ruling with legislative efforts to protect reproductive freedom, both for their own citizens and for those from other states seeking help.

Does Supreme Court Dobbs Decision Impact Reproductive Rights?

But the Court’s Dobbs decision, which returns the right to regulate or ban abortion to state courts and legislators (and theoretically federal legislators), also raises concerns about whether the use of assisted reproductive technology such as IVF will violate the law in states with strict abortion bans.

The arguments the conservative justices used to support their Dobbs decision transcend “merely” the issue of abortion rights. Justice Samuel Alito writes in the majority opinion that “this decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

Yet the Court’s 1973 Roe v. Wade decision was based on the same presumed human right to privacy on which numerous other decisions, before and after, were based, including the right of married couples to receive information about and use contraceptives, the right of consenting adults to have sex in the privacy of their own homes, and the right of LGBTQ people to marry someone of the same sex. In the Dobbs opinion, Alito writes, “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision. If the right isn’t specifically listed in the U.S. Constitution, Alito continues, it must be “‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty’” in order to be a protected right.

Alito’s opinion seeks to allay concerns about threats to other civil rights, calling abortion a “unique act” that “terminates ‘life or potential life.’” That language is cold comfort to those concerned about Americans’ rights to assisted reproductive technology.

Today IVF and other fertility treatments are still legal in all 50 U.S. states and Washington, DC. But many states have enacted or tried to enact laws that define human life as beginning at conception and that confer the rights of personhood on fertilized embryos, even those too immature to survive outside the womb. The legal concept of “personhood” is already being litigated in embryo disposition and divorce cases, as we have reported.

Northern Kentucky University law professor Judith Daar, an expert in reproductive health, notes that the Court itself raised the issue of personhood in Dobbs by referring to “unborn human beings.” “If an early embryo is deemed a person for purposes of legal rights and protections, any action short of transfer to the uterus could be seen as violating its right to life under these new laws,” Daar told NPR.

Will Dobbs Decision Make IVF Illegal?

That’s in part because the routine process of IVF and other types of reproductive technology may in some cases destroy fertilized embryos. When patients undertake IVF, typically multiple eggs are harvested via a medical procedure and fertilized with sperm outside a woman’s body to create multiple embryos. The embryos are then evaluated to see which are viable and most likely to survive, and frozen, or cryopreserved, for implantation. In many cases, the goal of IVF is to create as many embryos as possible to maximize the number of viable embryos and the odds of success.

Best practices today call for implantation of a single embryo, leaving a great likelihood that remaining embryos will be frozen for future use (thawing and implantation). Even the acts of thawing or implantation carry the potential risk of destroying the embryos. Conversely, if multiple embryos are implanted, selective fetal reduction (essentially early abortion) may be used to reduce the risks to the mother (or surrogate) and offspring that are inherent in pregnancy with multiples.

“If an early embryo is deemed a person for purposes of legal rights and protections, any action short of transfer to the uterus could be seen as violating its right to life under these new laws,” Daar said.

Will State Abortion Bans Outlaw Embryo Freezing and Fertility Preservation?

If embryos are legal persons, is it legal to freeze them?

Cryopreservation, or freezing, of embryos has vastly expanded the potential of assisted reproduction. With improved technologies, even embryos decades old have been successfully thawed, implanted and carried to birth. Perfection of the technology allows people to preserve the possibility of becoming parents in the future, such as for those who must undergo fertility-damaging medical treatments (e.g., radiation or chemotherapy), soldiers preparing for combat missions, or individuals seeking to delay parenthood for financial or career reasons.

Today, cryopreservation also is a routine part of the IVF process that has improved outcomes over procedures using unfrozen embryos. Many intended parents undergoing IVF opt to freeze and store excess embryos in the event they may want to add to their families in the future. Storage costs are typically several hundred dollars annually.

Once their families are complete, parents may decide to discard any remaining viable embryos, donate them to another prospective parent, or donate them for scientific research.

State personhood laws could remove those options for intended parents, potentially prohibiting the creation of multiple embryos. As Barb Collura, president and CEO of RESOLVE: The National Fertility Association, told NPR, while there is no legal precedent for prosecuting physicians who do not implant embryos, providers are concerned about the implications for IVF in states with strict abortion bans. “If you believe that an embryo is a person, then perhaps even if that embryo is outside of the body, you want to ensure that it is protected and no harm comes to it,” she said. “And that’s where we run into some problems. Because there are things that are done as standard practice in a laboratory in the course of IVF that some may deem as causing harm to that embryo.”

Will State Abortion Bans Prevent Genetic Testing of Embryos?

Many recently enacted state abortion bans have few exceptions, some only in the case of an inviable fetus or endangerment of the mother’s life. Diagnosis of a severe illness or disability in the fetus would not qualify.

Quinn Bradlee, who suffers from a rare genetic condition called DiGeorge syndrome or VDFS, and his wife opted to use IVF and preimplantation testing to create their family in order to avoid the 50 percent chance Bradlee would pass the condition on to a child. As Bradlee wrote in Politico, “My wife and I are doing IVF because we wanted to avoid a situation where she gets pregnant, discovers an abnormality through genetic testing and then needs to have an abortion….”

As Bradlee notes, he and his wife have the means to bear the expense of IVF and testing before pregnancy; other families less well off may only learn of an abnormality through fetal testing during pregnancy. For those families, an absolute abortion ban means the decision of whether or not to bring a child into the world with a serious condition would be taken from them.

Will State Abortion Bans Lead to Loss of Fertility Insurance Benefits?

A small but growing number of states currently mandate employee insurance benefits for fertility treatment and reproductive health care. Major corporations, particularly in the tech sector, have embraced the trend, using it is as a recruitment perk as more young workers seek to delay parenthood via fertility preservation technology. The trend for employers and insurers to cover at least some types of treatment has made assisted reproductive technology more affordable, and thus more accessible, to more people than ever before.

Some providers worry the Supreme Court’s Dobbs decision may have a “chilling effect” on the trend. Dr. Samuel E. Brown, head of one of Florida’s largest fertility clinics, says that laws restricting the treatment of embryos could result in lengthier IVF processes along with higher costs. “Any roadblocks or increase in cost for fertility treatment can potentially scare away the insurance payers, where they don’t want to take the burden of that extra cost,” the doctor told Newsy.

IVF, Assisted Reproduction Are ‘Pro-Life’

While the Supreme Court’s denial of women’s right to choose in its Dobbs decision has thrown countless families into turmoil and endangered women’s lives, it’s important to remember that IVF and other forms of assisted reproduction are still legal today. Answers to the questions addressed above no doubt will be hammered out in state and federal courts and legislatures for years to come.

Meanwhile, thousands of families have benefited from the miracles of modern technology that have made parenthood possible for people who, in another time or place, would have remained childless.

Fertility treatment technology is overwhelmingly popular with much of America. Even many anti-abortion politicians and activists are quick to deny that the Court’s overturning of Roe will impact IVF and other assisted reproduction. But a new policy paper by the American Society for Reproductive Medicine (ASRM) cautions that “overly broad” language in state abortion bans could backfire, as reported by The Hill. For example, Utah’s abortion “trigger law” defines abortion as “intentional killing or attempted killing of a live unborn child through a medical procedure carried out by a physician or through a substance used under the direction of a physician,” but fails to define “live unborn child.” The lack of definition means the law could be interpreted to include the discarding or donation of embryos, the ASRM paper concludes.

According to RESOLVE, about one in eight U.S. couples deal with some form of infertility. In 2019, 2 percent of all U.S. babies born, some 78,000, were conceived using assisted reproduction. Those 78,000 babies were celebrated and welcomed into their families with just as much joy as the other 3,667,540 American babies were. That’s “pro-life.” While recent attacks on women’s rights and all American’s rights to reproductive autonomy are a troubling turn, we at IFLG remain convinced that the American people will reject (and we remain ready to stand up against) attempts by conservative lawmakers and religious extremists to outlaw these miraculous, life-affirming technologies.