29 Aug 2023 Texas Abortion Ban Risks Women’s Health and Stretches into the World of Assisted Reproduction

With its restrictive abortion law, the state of Texas has become an example of why bans on abortion are not only a detriment to women’s rights and health, but, as time passes and lawsuits are filed, it is also giving us insight into possible far-reaching consequences in the world of assisted reproduction.

Texas Abortion Trigger Law Takes Effect

In June of 2022, the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women's Health Organization stripped American women of federal protections when it comes to abortion rights, leaving the issue of abortion to the states. Many states, including Texas, already having trigger laws in place meant anti-abortion laws took effect almost immediately after the Supreme Court’s ruling. The Texas trigger law, passed in September of 2021 and known as the Texas Heartbeat Bill, was effectively enabled following the Supreme Court ruling, prohibiting physicians from performing abortions after cardiac activity is detected (usually around six weeks of pregnancy and oftentimes before a woman even knows she is pregnant). Under this law, abortion is only allowed if the pregnant patient faces “a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy.” There are no exceptions for rape or incest. The Texas abortion law also makes it a first-degree felony for anyone who knowingly performs an abortion, punishable by hefty fines and prison time. Anyone in the medical field, including doctors, nurses, pharmacists, family members, or friends who aid in an abortion, is potentially subject to prosecution.

Women Sue Texas Over Abortion Bans Putting Their Lives at Risk

In March of this year, five women filed a lawsuit against the state of Texas over the restrictive abortion laws, stating that they didn’t receive vital obstetrical care when they were denied the right to terminate their pregnancies, even though their lives were at risk. Now, multiple other women have joined the lawsuit with similar stories, alleging that vague language, the use of non-medical terminology, and poorly written legislation have the medical profession confused and afraid to perform medical exception abortions for fear of prosecution. Litigants are asking for clarity in the statutory language so that doctors can confidently perform medical procedures that fall within the exceptions of the ban.

ABC News reported that Amanda Zurawski, the lawsuit’s lead plaintiff, was diagnosed with an incomplete cervix during her pregnancy. Doctors told Zurawski there wasn’t anything they could do as there was still a fetal heartbeat. It wasn’t until Zurawski developed sepsis that doctors were allowed to perform the abortion. After the procedure, she developed sepsis again and formed so much scar tissue that one of her fallopian tubes is now permanently closed.

Another plaintiff Anna Zargarian was diagnosed with preterm premature rupture of the membranes, which put her at high risk for hemorrhaging or sepsis. She had to travel out of state for the necessary medical abortion, incurring travel costs. Several other women also stated having to travel out of state in order to have a termination procedure or risk their health.

As more women have come forward, a common theme is emerging; women with pregnancy complications are either forced to risk their own health by carrying the fetus to term or find the time and the means to travel out of state to receive abortion care.

Women Forced to Carry Fetuses with Fatal Conditions in Texas Due to Abortion Ban

Some women in the lawsuit claim they were forced to carry a non-viable pregnancy to term. Kylie Beaton’s physician found at her 20-week ultrasound that the fetus had alobar holoprosencephaly, a rare condition in which the brain fails to develop into two hemispheres, resulting in the loss of midline structures and fusion in the brain cavities and severe facial deformities. Beaton tells ABC News that she was told by her doctors that there was nothing to be done unless she herself developed a severe health issue.

With this condition, the fetus’ head develops at a different rate, often filling with fluid making the head larger. Dr. Katie McHugh, an Indiana OB-GYN told ABC that “most of the time vaginal delivery is not an option. And so cesarean delivery is required. And this is going to be major abdominal surgery with risks associated with it – for a baby that has maybe no chance of a normal life or potentially of survival at all, depending on the severity.” Beacon gave birth via emergency c-section to a son who died four days later.

Samantha Casiano, who found out at a 20-week ultrasound that her baby would be stillborn or die shortly after birth due to a rare birth defect, was still forced to carry her pregnancy to term. She tells CNN after delivering her daughter in March, “All she could do was fight to try to get air. I had to watch my daughter go from being pink to red to purple. From being warm to cold. I just kept telling myself and my baby that I’m so sorry that this had to happen to you.” She says she couldn’t afford to travel out of state for an abortion.

Frozen Embryo Lawsuit in Divorce Case Cites Texas Abortion Law

Another lawsuit citing Texas’ extreme abortion law, Antoun v. Antoun, has gained national attention. For the first time in Texas since the overturning of Roe v. Wade, a divorcing couple went to trial court in a dispute over which spouse should have possession of the couple’s cryopreserved pre-embryos (fertilized ova at less than 14 days of development). As part of the IVF process, both parties signed medical consent documents at their fertility center that dealt with “embryo dispositions between them in the event of death or divorce” in which the pre-embryos were to be at the disposition of the husband. The wife argued that she did not understand what she was signing at the clinic and that the cryogenically preserved pre-embryos should not be treated as property but that they should be treated as “unborn children,” Because, she contended, the Texas Human Life Protection Act took effect after the Dobbs ruling. The court, after an appeal, eventually sided with the husband, stating that the medical consent documents were binding, and that the wife had taken a “definition out of its legislatively created context and used it in a context that the legislature did not intend.”

This case brings to light the fact that Texas has not directly addressed the status of pre-embryos that are not yet in the womb, making it possible for more of these types of cases to follow suit. Is it only a matter of time before frozen pre-embryos are considered “unborn children” with the new abortion laws? Justice Elizabeth Kerr, a judge in Place 3 of the Texas Second District Court of Appeals and in this case, writes separately as a concurring opinion with a follow-up on the majority’s observation “that it has been 17 years since our sister court in Houston ‘anticipat[ed] that the issues for how to deal with frozen embryos] will ultimately be resolved by the Texas Legislature.’” She goes on to say, “I urge the Texas Legislature to grapple with them in light of, perhaps as on a continuum with, the policies that protect embryonic life when it is in a different location.”

Possible Effects of Texas Abortion Ban on Intended Parents Pursuing IVF

In the case of Antoun v. Antoun, the court sided with the husband that the frozen pre-embryos are not unborn children, but what if the court had decided in favor of the wife? It is within the realm of possibility that in the near future frozen pre-embryos could be considered unborn children. “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,” said Barbara Collura, president and CEO of RESOLVE: The National Infertility Association, on NPR.  “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.”

The reality is the Dobbs decision has opened the door for potential legal challenges to IVF and other forms of assisted reproductive technology. The process of IVF often produces multiple pre-embryos, often more than can be used by the intended parent or parents, and many end up cryopreserved. If intended parents decide to discard their unused pre-embryos, or even pre-embryos that are not viable for pregnancy, do they face possible criminal charges for violating the abortion ban? Do they continue to pay yearly storage fees to keep the pre-embryos frozen via cryopreservation indefinitely to avoid possible prosecution? Will embryologists and cryopreservation facilities themselves bear the brunt of prosecution? Where is the line, and who deems that someone has crossed it?

At its core, restrictive abortion laws combined with lack of specific verbiage and clarity in language not only deeply threatens a woman’s right to her own bodily autonomy but may also have far-reaching consequences in the world of assisted reproduction. Women are being forced to travel out of state for abortions, and intended parents may well be forced to do the same if pre-embryos created outside of a woman’s body are deemed unborn children. This leaves a plethora of unanswered questions and an entire state with its population at the mercy of different interpretations of the law. Now it falls to Texas and voters throughout the country to demand reproductive freedom and the restoration of the rights of American women to control their own bodies.