Implications of Abortion Laws for Fertility Services

On June 24, 2022, the US Supreme Court ruled in Dobbs v. Jackson Women’s Health Organization that abortion rights are not protected by the Constitution. The court’s decision in Dobbs, which overturned its landmark 1973 ruling in Roe v. Wade, gave state legislatures the authority to regulate access to abortion.

Prior to the Dobbs ruling, 13 states (including Louisiana, Tennessee, Texas, and Utah) had enacted “trigger laws” intended to automatically ban access to abortion in the event Roe was overturned.^[1] While some of these trigger laws were temporarily delayed by waiting periods or litigation, many of them are now in effect.^[2] In addition, several state legislatures have passed laws banning or restricting access to abortion post-Dobbs.^[3] It is estimated that about half of US states will ultimately ban all or almost all abortions.^[4]

Roe was decided nearly 50 years ago, before most of today’s assisted-reproductive technology — including in vitro fertilization (IVF) — was available. Post-Dobbs, fertility clinics will need to navigate a patchwork of abortion regulations to ensure the fertility services they offer are compliant with state law.

Types of Abortion Laws

State abortion laws exist on a spectrum — from total bans in states such as Alabama^[5] and Texas^[6] to laws like those in Oregon,^[7] which do not restrict access to abortion based on gestational age and thus permit individuals to receive abortion care throughout their pregnancies.^[8]

• Full abortion bans: These laws ban all abortions at every gestational age.
• “Heartbeat” bans: Some states have banned all abortion procedures after fetal cardiac activity (often referred to as a “heartbeat,” though an embryo at six weeks’ gestation — when cardiac activity can first be detected — has not yet developed a heart).
• Pre-viability bans: Some states permit abortion early in pregnancy but still impose restrictions pre-fetal viability. For example, Florida has banned all abortions after 15 weeks of gestation.^[9]
• Viability bans: Many states — including Maine,^[10] New York,^[11] and California^[12] — permit abortion until fetal viability (which is typically around 24 weeks of gestation) but prohibit the procedure thereafter.
• Full protection: A handful of states, including Alaska,^[13] do not restrict access to abortion based on gestational age.

Many states — including some that have instituted total abortion bans — permit abortion after the “cutoff” period in some limited circumstances. Common exceptions include pregnancies that are the result of rape or incest; cases of a lethal fetal anomaly, in which the fetus suffers from medical issues that are incompatible with life; and circumstances in which abortion is necessary to protect the life or health of the pregnant person.

Effect of Abortion Bans on Fertility Clinics

While many state legislatures have passed laws restricting or banning abortion in recent years, the majority of those laws exempt the destruction of cryopreserved embryos in connection with IVF and other assisted reproductive technologies (ART). States have introduced or passed 83 bills that mention abortion and ART since 2010; 45 of those bills contained explicit exemptions for ART procedures.^[14]

Recent legislation suggests this pattern will continue. For example, the Louisiana Senate introduced an abortion ban bill in May 2022 that would have criminalized at least some aspects of IVF, and the Louisiana House refused to pass the legislation as written. The final bill banned abortion procedures but exempted contraception and IVF.

Although explicit exemptions are helpful for clarity, they are not always necessary to exempt ART procedures. For example, Oklahoma’s abortion ban defines abortion as “the use or prescription of any instrument, medicine, drug, or any other substance or device intentionally to terminate the pregnancy of a female known to be pregnant.” Obviously, embryos stored for ART procedures do not equate to a pregnancy, and the destruction of such embryos would not be considered an abortion under the law. The nonapplicability of Oklahoma’s abortion ban was clarified by the Oklahoma attorney general in a memorandum dated August 31, 2022.^[15]

However, while fertility clinics currently remain able to offer ART services (including IVF) in all 50 states, abortion laws may have a direct impact on fertility clinics in a variety of ways.

Reduction Procedures
Multifetal pregnancies — such as twin or triplet pregnancies — are riskier than singleton pregnancies for both the fetuses and the pregnant person. According to the American College of Obstetrics and Gynecology, “[i]nfants born after a multifetal pregnancy are at increased risk of prematurity, cerebral palsy, learning disabilities, slow language development, behavioral difficulties, chronic lung disease, developmental delay, and death.” Multifetal pregnancies are associated with a fivefold increased risk of stillbirth, a sevenfold increased risk of neonatal death,^[16] and increased maternal risks such as hypertension, preeclampsia, gestational diabetes, and postpartum hemorrhage.^[17]

While multifetal pregnancies can occur spontaneously, their frequency has significantly increased as ART procedures have become more common.^[18] Particularly in the case of high-order multifetal pregnancies (those with three or more fetuses), a patient’s obstetrician may recommend reducing the pregnancy by one or more fetuses in order to lower the risk of medical complications.^[19] This procedure is often referred to as “selective reduction” or “selective termination.”

Selective-reduction procedures are typically performed in the first or early second trimester of a pregnancy, well before the 24-week viability mark. Before Dobbs, patients had a constitutional right to abortion before fetal viability; because reduction procedures are performed pre-viability, access to such procedures was constitutionally protected.

Today, however, many states have implemented pre-viability or other abortion bans that may restrict or prohibit physicians from performing selective reductions. While some states that otherwise ban abortion permit the procedure to protect the life or health of the mother, it is not clear whether these exceptions would permit selective reduction when the procedure is intended to mitigate the known risks of multifetal pregnancies but a particular risk to the pregnant person has not yet manifested. Under some states’ laws, it is also unclear whether the exemption for ART procedures is intended to include exemption for reductions performed in connection with an ART procedure or only for pre-implanted embryos.

Fertility clinics in states that ban abortions at any stage should consider consulting with legal counsel to analyze whether state laws conflict with the clinic’s existing policies on offering selective-reduction procedures. Physicians may also wish to consider altering their policies around intrauterine insemination (IUI) and the implantation of multiple embryos created through IVF, because such procedures appear to have a higher risk of resulting in a multifetal pregnancy and thus increasing the medical necessity or recommendation of reduction procedures.

Amniocentesis and Pre-Implantation Genetic Testing
Abortion bans may also impact the ways fertility clinics, obstetricians, and gynecologists approach certain prenatal and embryonic genetic tests. For example, pregnant persons who are 35 or older or who have a family history of genetic disorders have a higher risk of having an infant with a birth defect, including terminal defects, or a chromosomal disorder such as Down syndrome.^[20] These individuals are often advised to undergo amniocentesis, a diagnostic procedure in which a needle is used to collect a sample of amniotic fluid, which is then sent to a lab for genetic testing.^[21] If the lab results show that the fetus has a genetic disorder, the pregnant person is then given the option to terminate the pregnancy.

However, amniocentesis cannot be performed until 15 – 20 weeks of gestation,^[22] which means that pregnant persons who undergo amniocentesis would not receive their lab results until after they have passed the cutoff for abortion access in many states; as a result, these individuals may not be able to abort a fetus diagnosed with a terminal birth defect.

Because of these restrictions, fertility clinics offering IVF may see an increase in demand for pre-implantation genetic testing (PGT). PGT uses cells biopsied from an embryo after it is created in vitro and can be used to identify whether an embryo is genetically normal.^[23] PGT results can be used to decide whether or not to implant a particular embryo. Because PGT is performed on embryos before a pregnancy occurs, the availability of the procedure is not likely to be affected by any abortion laws currently in effect in any state.

Fetal Personhood Laws
Some state legislatures have introduced “fetal personhood” bills, which would extend legal personhood status to pre-viability fetuses and potentially even to embryos before they are implanted into a person. Georgia, for example, enacted a law granting fetal personhood at six weeks’ gestational age, which means fetuses now qualify for certain tax exemptions and are to be included in population counts related to redistricting.^[24] In Louisiana, embryos are considered “persons” and exist as “juridical persons” until the embryo is implanted in the womb.^[25] Personhood laws applicable to embryos may effect fertility clinics in various ways, including on how fertility clinics storage, handle, and transfer embryos; how patients purchase donated embryos; and how banks take security interests in embryos.^[26]

Federal Abortion Legislation

In addition to state law, politicians across the political spectrum have advocated for federal laws regarding abortion access. In early 2022 the US House of Representatives passed the Women’s Health Protection Act, which would codify the abortion protections previously enshrined in Roe v. Wade. However, the act failed to overcome a filibuster in the Senate.^[27] Meanwhile, some Republican politicians — including Blake Masters, the 2022 Republican nominee for the US Senate in Arizona — have expressed support for federal fetal personhood laws, which could criminalize abortion from the time of conception. Masters, who was not elected to the Senate, later revised the abortion policy language on his campaign website to remove mention of a federal fetal personhood law. However, federal laws either protecting or banning abortion on a national scale could be enacted, depending on the outcome of the next presidential election.

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Abortion restrictions vary from state to state, and given the recent overruling of Roe, this area of the law is expected to remain in flux for some time. Fertility clinics, obstetricians, and gynecologists should consult with legal counsel to determine whether the states in which they are located have passed abortion restrictions that may impact their practices, and to ensure their services remain compliant with state law.

 

 

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^[1] The Fuller Project, ”How Major Abortion Laws Compare, State By State” (Dec. 6, 2022). 
^[2] The New York Times, ”What Are The Effects Of New ‘Trigger’ Bans in Tennessee, Idaho and Texas?” (Aug. 24, 2022). 
^[3] Id. 
^[4] Guttmacher Institute, “State Abortion Policy Landscape: From Hostile to Supportive” (Aug. 29, 2019). 
^[5] Ala. Code § 26-23H-4.
^[6] Tex. Health & Saf. Code § 170.002.
^[7] ORS § 743A.067.
^[8] Guttmacher Institute, “Interactive Map: US Abortion Policies and Access After Roe” (as of Dec. 26, 2022). 
^[9] Fla. Stat. § 390.0111. 
^[10] Me. Code. R. § 1598.
^[11] N.Y. P.B.H. Law § 2599-BB.
^[12] Cal. Health & Saf. Code § 123468.
^[13] AS 18.16.010.
^[14] Washington Post, “Roe Is Gone. How Will State Abortion Restrictions Affect IVF and More?” (Jun. 25, 2022).
^[15] Oklahoma Attorney General, “Memorandum Re Guidance for Oklahoma law enforcement following Dobbs v. Jackson Women’s Health Org.” (Aug. 31, 2022).
^[16] The American College of Obstetricians and Gynecologists, “Multifetal Pregnancy Reduction” (Sept. 2017).
^[17] Id. 
^[18] Id.
^[19] Id.
^[20] The American College of Obstetricians and Gynecologists, “Amniocentesis – Frequently Asked Questions” (Mar. 2021).
^[21] Id. 
^[22] Id. 
^[23] Journal of Human Reproductive Sciences, “Preimplantation Genetic Testing: Its Evolution, Where Are We Today?” Parikh, F. R. et al. (2018 Oct-Dec).
^[24] House Bill 481 
^[25] LSA-R.S. 9:123, 9:126; La. C.C. art. 24.
^[26] Goodwin Client Alert, “Taking Security Interests in Human Reproductive Tissue: Clarifying Lender Options under Federal and State Law,” Brendel, A. et al. (Jul. 14, 2022). 
^[27] The 19th, “Democrats’ Abortion Bill Fails — Again — And They Turn to November Elections,” (May 11, 2022).