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In the coming months, reproductive health care may look a lot different in the U.S. On June 24, the Supreme Court overruled the 1973 Roe v. Wade case that enacted the constitutional right to an abortion. As a result, the Court has effectively given states the legal authority on abortion, allowing them to restrict or ban the procedure altogether.
The decision has raised questions about access to not only abortion, but reproductive health care in general. Legal changes to abortion laws such as determining the recognized rights of an embryo or fetus at a certain stage of development could affect other areas of reproductive health, including fertility treatments, according to experts.
We asked fertility, reproductive health and legal experts to predict the potential outcomes of the change in abortion laws in regard to fertility treatments—including in vitro fertilization (IVF) and embryo freezing—and give recommendations if you’re in the process of trying to conceive using assisted reproductive technology.
Which States May Be Affected by a Roe v. Wade Overturn?
There are currently 22 states with laws or amendments in place that would make them certain to attempt to ban abortion in the wake of a Roe v. Wade overturn, according to the Guttmacher Institute[1]. This includes states that have trigger laws, or laws that are designed to take effect automatically or very quickly if Roe v. Wade is overturned. According to the Guttmacher Institute, those states include:
- Alabama
- Arizona
- Arkansas
- Georgia
- Idaho
- Iowa
- Kentucky
- Louisiana
- Michigan
- Mississippi
- Missouri
- North Dakota
- Ohio
- Oklahoma
- South Carolina
- South Dakota
- Tennessee
- Texas
- Utah
- West Virginia
- Wisconsin
- Wyoming
In some states, abortion laws are written with broad language, so there’s a question of whether a frozen fertilized embryo can be looked at the same way as a fetus in the womb under certain states’ laws recognizing a fetus’ personhood in banning abortion after a certain number of weeks of gestation, explains Bethany Corbin, a femtech and privacy attorney at Nixon Gwilt Law, who consults on ethical considerations in emerging technology.
“Is discarding the embryo, if it doesn’t fit or isn’t genetically viable, considered an abortion?” she asks. Right now, the legal changes are focused on abortion specifically, she says, but that may evolve to affect other reproductive health choices, including emergency contraception, or assisted reproductive technology.
Will There be Changes in Contraceptive Availability?
If you’re not trying to conceive, you may want to be aware of any potential changes to birth control accessibility. “Right now, pharmacists in six states are allowed to refuse to dispense contraception of any kind, including emergency contraception [such as Plan B], if it violates their religious beliefs,” says Stephanie Swartz, senior director of policy and public affairs at Favor (formerly known as The Pill Club).
While the Supreme Court decision may not explicitly mention birth control, with a Roe v. Wade overturn, it’s likely that policies that limit access to birth control and other forms of contraception, including emergency contraception, that prevent unwanted pregnancies in the first place, may also be passed, Swartz says.
The Possible Changes to IVF
The trigger laws mentioned above could affect access to IVF and how doctors can practice it, according to Lucky Sekhon, M.D, a double board-certified reproductive endocrinologist, infertility specialist and OB-GYN at RMA of New York.
“If Roe v. Wade is overturned, trigger laws can go into effect immediately that recognize an embryo as a person—[and] if a fertilized egg is considered a person, anti-abortion laws could make it illegal to discard embryos,” says Dr. Sekhon.
This can limit how IVF is practiced, as the procedure typically involves stimulating, extracting and then fertilizing as many eggs as possible in order to create as many healthy embryos as possible, explains Dr. Sekhon.
During the process of IVF, only about 60% of fertilized eggs successfully develop into an embryo, according to Dr. Sekhon. It’s possible that some states that have bans on abortion may also restrict how many eggs can be fertilized at once so that embryos are not discarded, she adds.
In fact, a 2017 report in the Texas Law Review notes that Louisiana is the only U.S. state that has what is known as a personhood law that addresses embryos created using assisted reproductive technology—and states that “the law provides that embryos created through IVF are ‘juridical persons’ who have certain rights granted by law. These rights include the right to doctor–patient confidentiality and rights against being sold, used for research or destroyed[2].”
That may also affect the discarding of embryos after genetic testing is done and before they are implanted in the uterus via IVF, according to some experts. “This means that if there is anything genetically abnormal with these embryos, discarding them would be against the law due to these personhood laws,” says Heather Irobunda, M.D., a board-certified OB-GYN based in New York City. “This may ultimately lead these fertility clinics to fertilize fewer eggs to create fewer embryos to try to avoid these scenarios.”
Both doctors agree that limits placed on how many eggs can be fertilized will make the IVF process ultimately less effective, requiring more cycles and more money (as it could take patients longer to conceive). If barriers are in place to discarding surplus embryos from the IVF process or embryos that are not genetically viable, patients may have to move the embryos to states that don’t have these types of restrictions, discarding them there instead, adds Dr. Sekhon. The exact cost for transferring embryos to another state varies (Dr. Sekhon recommends calling a clinic and asking to speak to the finance department about how much a standard clinic would charge in this situation).
How Embryo Freezing May Be Affected
There’s a chance that there could be a limit in certain states to how many eggs are fertilized, and the rest frozen, with an overturn of Roe v. Wade, Dr. Sekhon says. Embryo freezing is, in general, more efficient than egg freezing, because embryos can be genetically tested (unlike eggs), so you know their reproductive potential, says Dr. Sekhon. The embryos also tend to do well once they are thawed, compared to just freezing eggs, she adds. “Embryo thaw survival rates are high, generally above 95%,” she says.
Because embryos under the law could be considered to have personhood, this could lead to some states mandating that all embryos are transferred into the uterus instead of being frozen, Dr. Irobunda adds. “This can lead to transferring all of the embryos created at the same time, which increases the chance of having multiples (twins, triplets, quadruplets or more), which are high risk pregnancies.”
Maternal mortality rates are already 23.8 deaths per 100,000 live births in the U.S., and are close to three times that for non-Hispanic Black women, according to the Centers for Disease Control and Prevention (CDC)[3]. For context, a 2020 report from the Commonwealth Fund found that among 11 developed countries, the U.S. has the highest maternal mortality rate[4].
There’s also a chance that states could limit any manipulation to the embryos that could be considered “harmful” to the embryo, according to Dr. Irobunda. This could include limitations to genetic testing and embryo freezing altogether. And that may affect families who choose IVF not just for fertility reasons, but to avoid passing down genetic disorders that might run in their family, she adds.
How to Prepare for Potential Changes to Fertility Treatments
If you’re not trying to conceive or undergoing fertility treatments, it might be a good idea to look into long-acting, reversible contraceptives like IUDs, suggests Swartz, as they are widely available and legal. “We suggest speaking with a trusted medical professional about whether it’s the right option for you,” she adds. She also recommends having emergency contraception on hand to help prevent fertilization and implantation from occurring after unprotected sex.
If you’re considering starting a family and may need to use assisted reproductive technology, fertility preservation—like egg freezing—may benefit you. This would come into play specifically if you live in one of the states that have trigger laws and you have known gynecologic or fertility concerns where you might need to use IVF, says Dr. Sekhon. “It is probably wise to initiate treatment sooner rather than later, given the uncertainty and the impact of time and age on the overall outcome of fertility treatment in general,” she adds.
The best thing you can do is stay on top of developments in your state’s laws. “If there are arguments being made that personhood starts at fertilization, it may affect ART [assisted reproductive technology] in your state,” says Dr. Irobunda. It may be advisable to move frozen embryos from a state with these personhood laws to another state, she suggests—just reach out to fertility centers in your local area before doing so for guidance.
Ultimately, you have to be your own advocate when it comes to knowing what’s legal in your state from a reproductive rights standpoint. “It’s still that the burden will fall on a lot of people getting their fertility treatments to know and understand their rights much more than they did before,” says Corbin.
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