Within minutes of the leaking of the draft opinion from the US Supreme Court calling for the overturning of Roe v. Wade, Elizabeth Constance, a reproductive endocrinologist at the Heartland Center for Reproductive Medicine in Omaha, Nebraska, was inundated with messages on social media from concerned patients. What does this mean for the embryos I have frozen, they asked her. What does it mean for the egg retrieval I have planned? “Our patients are really afraid,” says Constance.
Should Roe v. Wade, the 1973 case which ruled that the right to abortion in the US is protected by the Constitution, be rolled back, the repercussions will be swift, and they will be devastating. And the realities of a post-Roe world will likely not stop at abortion bans. Many more frontiers of reproductive health are in peril, legal experts and bioethicists warn.
The most immediate concern, says Sean Tipton, chief advocacy, policy, and development officer of the American Society of Reproductive Medicine, is that a lot of states use language in their laws that would give legal and constitutional status to the fertilized egg should Roe be overturned. At the moment, 13 states in the US have “trigger” laws in place that would ban all or nearly all abortions immediately or very quickly if Roe were overturned, according to the Guttmacher Institute, an abortion-rights advocacy and research group. In many of these laws, life is defined as beginning at the moment of fertilization, although the exact language differs from state to state.
By this definition, any procedure involving the destruction of a fertilized egg is at risk of being outlawed if Roe v. Wade is overturned—a fertilized egg would theoretically hold the same rights as a kindergartner. This is the manifestation of the “personhood” movement, propagated by pro-lifers, which seeks to define fertilized eggs, zygotes, embryos, and fetuses as people with equal protections under the law. “It is a clear and present danger to all forms of reproductive health care,” Tipton says.
Not only does such terminology outlaw abortion, it could jeopardize access to certain forms of birth control, such as intrauterine devices, as well as emergency contraception like Plan B. This is because these forms of contraception are considered by some anti-abortion advocates to be abortifacients—substances that induce abortion—when interpreting life as beginning at fertilization. (This is despite IUDs and emergency contraception largely preventing pregnancy by stopping eggs from being fertilized or from being released, respectively, rather than interacting with eggs after fertilization.) It could also impair access to assisted reproductive therapy, namely IVF.
Roe’s fall could be the opportunity seized upon by pro-life politicians to push for further restrictions, warns Seema Mohapatra, a law professor specializing in health law and reproductive justice at Southern Methodist University in Texas. “Any state that has been on the forefront of anti-abortion legislation, we can expect to have these ancillary types of laws passed,” she says. That includes large swathes of states in the Midwest and the South. “Even if up until now they haven’t been active, this is really going to empower states—and, cynically, politicians that want to get attention—to be focusing on these issues.”
Already, we’re seeing some states making moves. On May 4, a Louisiana legislative committee advanced a bill, Louisiana House Bill 813, to make abortion a crime of homicide in which the mother or those assisting her in terminating the pregnancy can be charged. The bill also states that the unborn should be protected at the moment of fertilization, the exact language that could criminalize birth control in certain forms. In April, Nebraska’s trigger law, Nebraska Legislative Bill 933, which called for a ban on abortion and also appeared to ban certain forms of contraception and Plan B, died after it failed to gather the votes it needed. But a special session to try again could be called this summer if Roe is overturned.
A further knock-on effect of these laws could be to impair access to IVF, where superfluous embryos are part and parcel of the procedure—multiple eggs are harvested and fertilized to raise the likelihood of the process being successful, with those embryos not immediately needed often being frozen, to potentially be used in later rounds. “The entire practice is predicated on some embryo disposal,” says Eliza Brown, a sociologist at UC Berkeley who specializes in reproduction. This is especially true if the clinic is employing methods such as preimplantation genetic testing to look for and dispose of embryos with genetic abnormalities, which is becoming the standard of care. Another commonly used procedure is selective reduction. In IVF, multiple embryos are often transferred into the uterus to up the chances of conception. If a person is found to be carrying multiple fetuses after the embryos have been transferred, which is common in IVF, clinicians will reduce this number to increase the chances of a healthy pregnancy; instead of carrying quintuplets, a mother might instead choose to carry twins.
But in a post-Roe world, these standard interventions could be deemed illegal. Typically, a person with frozen embryos has three options: to discard them, to donate them to research, or to donate them to another couple. The latter, called embryo donation, is the approach most favored by the pro-life movement. The former could be under serious threat; IVF clinics found to be disposing of unused embryos could be subject to criminal charges. “In a state that says a frozen embryo is a person, then basically, you are destroying a kid,” says Kimberly Mutcherson, a professor at Rutgers Law School who focuses on reproductive justice and bioethics.
For Angela Crawford, a 36-year-old living in Springfield, Missouri, Roe’s imminent demise leaves her facing a lot of uncertainty. Crawford had her two kids through IVF, and until she decides whether she wants a third, she has 11 frozen embryos stored in Missouri. But if Missouri’s laws define life as beginning at the moment of fertilization, her options will instantly be limited. “I have 11 embryos; there’s no way they’re all genetically normal—just statistically, they’re not. And so that means they’re not all viable,” she says. “And so if they are assigned personhood, what do my options become then?” Could states potentially force people to transfer all their embryos into the uterus at once? Mutcherson thinks that while pro-life politicians might broach the idea around the kitchen table, it’s less likely to be written into law. “I think it would be very hard for them to mandate that your only choice is to transfer all of those embryos.”
But it will mean people could have to store their embryos in perpetuity, which can cost as much as a thousand dollars a year, a not insignificant price tag for people already shelling out thousands for every other part of the IVF process. It will also mean that fertility treatments will be harder to obtain for marginalized groups, for whom access is already very difficult. Plus, Mutcherson worries about the psychological toll of these various scenarios, which would all involve having your state intervene and decide what is the best thing to do with your embryos. “I think a lot of people would bristle at that. And with good reason.”
If you can move your embryos out of your state, get them out, she advises. “If you have embryos that are frozen in a state that either has a trigger law or that you know is very conservative, and you have the resources to move them elsewhere, I would move them,” she says. “And I wouldn’t want to wait until the point where it might be harder to move them, because you don’t know what the legislation is going to look like.”
Other basic cornerstones of reproductive health are also at risk. “Contraception is going to be probably the very close next frontier,” says Mohapatra. We’ve already seen the Supreme Court recognize religious beliefs as sufficient to argue that birth control is an abortifacient; take the Burwell v. Hobby Lobby case. In 2012 the US Department of Health and Human Services issued the contraception mandate, which meant that health insurance provided through an employer had to cover certain forms of birth control. But in 2014, Hobby Lobby, a chain of craft stores, argued that this violated a federal law protecting the right to religious freedom; Hobby Lobby should not, it argued, have to cover the birth control costs of its employees as it infringed on the company owners’ religious beliefs. In the end, the Supreme Court ruled that this mandate did in fact violate the law protecting the right to religious freedom in the case of privately held, for-profit companies like Hobby Lobby.
So if you have an IUD implanted, will that make you a criminal come June? Probably not. A ban would likely not happen that quickly, and if it did, it probably wouldn’t be that black-and-white. “We have to realize that there’s a lot of steps involved—a physician would have to report it,” says Mohapatra. But what that does mean is that people with access to private health care will have much more access to privacy in general. “In terms of who is actually reported, who was actually having their lives changed, we can see that it’s going to go down the axes of race and privilege,” she says. “And so this really is something that is going to impact people that are already disadvantaged in terms of income, in terms of race and access to resources.”
The impending reality that Constance and her colleagues at the Heartland Center for Reproductive Medicine are facing is a scary one, she says. She chose this field because she cares about her patients. “But we all have our own families, so the idea of being put in a position where we have to choose between the oath that we’ve taken to do the best and safest thing for our patients and facing criminal charges is hard,” she says. But they’re also resolved to keep fighting for their patients’ access to life-saving reproductive therapies. “We’re not going to give up easily.”