A Roe reversal v. Wade could put fertility clinics at the center of the fight against abortion

In interviews with CNN, doctors who work in the field of fertility and academics who study the legal landscape surrounding it, say there is serious uncertainty — both about how fertility laws Abortion rights already in effect will be interpreted and how local lawmakers and prosecutors might seek to push the boundaries, freed from precedents that have effectively shielded the fertility process from government interference. This lack of clarity, it is feared, will affect the treatments doctors are prepared to offer IVF patients and the decisions people will have to make about how to continue growing their families.

According to Seema Mohapatra, a law professor at SMU Dedman, there are several stages of the fertility process that — without the current Supreme Court legal protections for the right to abortion, which have been in place for 49 years — could be vulnerable to government interference. Law school specializing in assisted reproduction.

“It really has these practical effects where, due to the lack of protection from Roe v. Wade and Planned Parenthood v. Casey, you may not be able to have that wanted child that you paid all that money for and you’re going to through this physical process in order to have,” she said.

About 2 in 100 children born in the United States are conceived through IVF, according to published data by the United States Centers for Disease Control and Prevention.

“We’re hanging on the wind right now,” a Midwestern reproductive endocrinologist told CNN of the looming uncertainty. The doctor spoke on condition of anonymity due to the sensitive nature of their practice and the uncertain future of procedures like IVF in their condition.

The focus is on how some states with anti-abortion laws, such as Tennessee, Arkansas and Kentuckyalready define embryos as unborn children at the time of fertilization – a position that may provide a starting point for lawmakers to interfere with the IVF process.

“States have already taken the liberty of having these broad definitions. They just couldn’t really apply them the way they wanted because Roe and Casey were getting in the way,” said the Rutgers Law School dean and Professor Kimberly. Mutcherson, referring to the 1973 and 1992 Supreme Court abortion precedents. But if Roe and Casey are struck down, Mutcherson said, it would effectively be the Supreme Court saying, “Do what you want to do, declare! ”

“And it’s a pretty wild place,” she said.

In Louisiana, lawmakers are already taking a bold direction. Lawmakers have advanced a bill last week, which would criminalize abortion in the state and provide constitutional rights to “all unborn children from the time of fertilization.” Notably, this bill would remove language from current Louisiana law that refers to “implantation” of the fertilized egg before it is considered a person.

“A bill like the one being proposed in Louisiana would ban IVF in that state, and that’s something we’re very concerned about,” Dr. Natalie Crawford of FORA Fertility in Austin, Texas told CNN. “We don’t think people understand the implications of some of these bills.”

“It’s a design process, not a moment”

When an individual or couple undergoes the IVF process, the work begins in a lab, where a sperm fertilizes an egg after weeks of preparation. The goal is to eventually transfer a healthy embryo into a person’s uterus. But first, the embryo must reach the blastocyst stage, which usually occurs between five and seven days after fertilization.

“It’s a design process,” the Midwestern doctor said. “Not for a moment.”

IVF clinics usually use the genetic material of two people to create multiple embryos because they don’t know which ones will develop at the right stage or which ones will result in a successful pregnancy.

“The goal is usually to make as many embryos as possible,” explained the doctor. “That’s because, on average, half of all embryos are chromosomally abnormal.” These abnormalities can lead to conditions such as Down syndrome and trisomy 18 or can prevent the embryo from growing into a healthy pregnancy. Clinics and/or clients usually choose to discard them rather than implant them.

This creation of multiple embryos is where IVF clinics see potential legal issues on the horizon. If a state defines an unborn child as existing at the time of fertilization, clinics could violate the law by rejecting chromosomally abnormal embryos or terminating a pregnancy where multiple embryos were implanted.

“The odds of a successful IVF cycle aren’t that high, so doctors often implant multiple embryos to maximize the chance that at least one pregnancy will come to term,” said Mary Ziegler, Harvard visiting law professor. who writes extensively on abortion issues. “Sometimes to maximize the chances of a pregnancy going to term, some of those pregnancies are terminated. A lot of people in the anti-abortion movement look at this and say it’s abortion.”

People undergoing IVF can also choose to freeze unused embryos for later use, or for backup if a pregnancy ultimately fails.

“There are always extra embryos,” Mohapatra said. “You don’t know if it’s going to take the first cycle.”

Crawford posted a long thread on Twitter highlighting how restrictive abortion laws in several states could be detrimental to IVF, explaining that the process of “egg fertilization, embryo freezing, embryo testing and transfer/discarding embryos…is essential for safe and accessible access and effective IVF care.” Crawford continued, “The fear is that when Roe is overthrown then the states individually decide their position on this issue…if life legally begins at fertilization – then we are limited in the above technology.”

“What do I tell these patients?

There is no clear indication at this point whether individual state legislatures will expand their abortion bans to apply explicitly to the IVF process. But the ambiguity in how future abortion bans might be interpreted — especially in a legal landscape where enforcement decisions might be made by individual prosecutors — forces people on the ground to consider what is possible. .

“If I was in an IVF clinic, we would waste many hours debating, ‘What does this mean? What should we do? How do we protect our patients?’ “asked Katie Watson, a bioethicist and lawyer who is an associate professor at the Feinberg School of Medicine at Northwestern University. “So the deterrent effect and the limits of the intelligent practice of medicine will be important even if not not what lawmakers intended.”

The Midwestern doctor who regularly sees patients struggling with infertility says the office phone rang nonstop with people concerned about what a post-Roe world would mean for their reproductive journeys.

“The receptionists asked me, ‘What should I tell these patients?’ “said the doctor, adding that it was difficult to give a definitive answer.

Part of the unknown is fueled by the discretion that individual prosecutors will have in enforcing abortion law.

“All it takes in any case is a rogue prosecutor who wants to be aggressive in their interpretation of the law, and that could definitely create problems for those seeking IVF,” said attorney Kim Clark. principal for reproductive rights, health and justice at the progressive advocacy organization Legal Voice.

Another complicating factor is the role that civil enforcement measures — like Texas’ six-week ban, allowing individual citizens to sue anyone who facilitates a procedure prohibited by the ban — will play around the world. post-Roe.

“When you have these citizen enforcement laws, all of a sudden any random neighbor who says a blastocyst is a [person] can continue this clinic, and that’s where the cooling is phenomenal,” Watson said.

One thing is clear, however. If Roe is cleared, an array of measures targeting IVF could “much more easily move forward,” according to Judith Daar, dean of Northern Kentucky University-Salmon P. Chase College of Law, who previously chaired the committee. Ethics of the American Society. for reproductive medicine.

“Roe’s reversal could motivate and certainly pave the way for new legislation that could specifically target IVF,” she said, while suggesting that states could, for example, possibly ban genetic testing that is now routinely performed on embryos to detect abnormalities before they are implanted.

Mutcherson said fertility patients might seek to take proactive steps, such as moving their embryos out of states that are thought to be abortion-unfriendly.

“The question that really arises now is, are there things people should be doing to protect themselves before the laws start to change?” said Mutcherson.

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