Abortion Bans Could Have Consequences for Fertility Treatments

It’s not only miscarriage care that’s newly impacted by the Supreme Court’s overturn of Roe v. Wade, which left abortion rulings up to individual states. Providers offering fertility treatments may be hesitant to perform certain procedures going forward, as they may now be considered controversial under the law in states where abortion is banned or highly restricted.

“As of right now, fertility treatments such as in vitro fertilization [IVF] are still allowed in each state, even in those where abortion is now banned after the overturning of Roe v. Wade. However, with the recent ruling, there could be an impact on fertility treatments down the road,” notes Jessica Shepherd, MD, an OBGYN practicing in Dallas, TX, and Chief Medical Officer at Verywell Health. “Due to very broad language used in the ruling that defines the time of conception as when life begins, this could potentially mean that embryos created for IVF and other treatments could have protected statuses, therefore limiting and restricting fertility care at some point in the future.”

That lack of clarity in the ruling ultimately makes it harder for people who actually want to grow their family to do so with the help of fertility treatments.

As a result of eroding abortion rights, access to fertility care could become limited—and some populations will be more affected than others.

Impact on IVF

The Centers for Disease Control and Prevention (CDC) estimates that 1 in 200 U.S. babies born each year were conceived with the help of IVF and other assisted reproductive technologies (ART).

IVF is a complex procedure involving collecting mature eggs from a person’s ovaries, which are then fertilized by sperm in a lab before the fertilized egg (known as an embryo) is transferred back into the uterus where there is opportunity for it to implant and progress into pregnancy.

“During IVF, more eggs are fertilized than are typically used as not all eggs fertilized outside of the womb may become viable—the best ones will be used for treatment,” notes Dr. Shepherd. “This is done to give the highest probability of pregnancy during implantation and/or to give someone multiple chances to become pregnant.”

Fertility providers will then offer patients the option to freeze unused embryos for future use or to discard them. But new abortion restrictions could make providers hesitant to discard embryos, out of fear that a case could be made that discarding an embryo could be equivalent to terminating a potential pregnancy.

“Because not all embryos are used, further restrictions could protect those embryos, which may lead to consequences for physicians who typically discard them after treatment [after consulting with the patient],” Dr. Shepherd tells Motherly.

Out of fear of legal repercussions, fertility clinics and physicians may start moving out of states that have strict limitations in favor of those states who offer better protections for reproductive healthcare and ART, she notes.

Legal experts agree. “Fertility clinics will face a flood of wrongful-death claims when the clinics discard embryos without authorization,” says Adam Wolf, a fertility attorney for Peiffer Wolf Carr Kane Conway & Wise, in a statement.

Because of the way the embryo or fetus is referred to in the Supreme Court’s majority opinion, authored by Justice Samuel Alito, which is filled with phrases such as “the unborn human being,” “potential life” and “the life of the unborn,” experts suggest that much of that language could carry over to embryos, too, offering them protected status separate from the pregnant person, and opening the door for fetal personhood bills, which assert that life begins at fertilization.

It’s not just embryo disposal that will be affected in those cases, then: fetal personhood bills could have larger impacts on everything from fertilization to genetic testing, embryo thawing, embryo transfer and other procedures essential to IVF treatment, adds Joshua Hurwitz, MD, an OBGYN and reproductive endocrinologist with Illume Fertility, which has practices in New York and Connecticut.

“The impact of these bills would vary from state to state, depending on the language included,” he notes. “Some fetal personhood bills have included allowances for IVF, but the threat to essential fertility treatment practices would most certainly be at risk should these bills become law.”

Reducing selective reduction

In some cases, multiple embryos will be transferred to the uterus for implantation to maximize chances of pregnancy, and then through a process known as selective reduction, one or more of the implanted embryos will eventually be removed.

Carrying more than one fetus at a time poses more health risks for both the mother and the babies, Dr. Shepherd notes. “When considering multifetal pregnancies, there is sometimes an option or recommendation to reduce the total number of fetuses in order to improve viability chances and lower risk of miscarriage. This can pose further complications in a state where aborton is banned may no longer allow this procedure,” she says.

Longer wait times and higher costs

If fertility providers are forced to leave states that don’t protect abortion rights, those closed clinics could significantly reduce fertility care access for thousands of women.

That may result in the following:

People seeking fertility treatments may be forced to travel long distances to nearby states offering more comprehensive procedures
Shuttered fertility clinics means a reduced number of fertility care providers, increasing demand and wait times for care
Higher demand for providers could cause an increase in the cost of fertility treatment
Clinics or patients may need to store embryos for longer periods of time, which contributes to rising costs, or patients may need to store embryos in states that are not hostile to abortion care, also incurring more costs.

These trickle-down effects will no doubt impact certain demographics more than others. “Lower-income populations and people of color will be impacted most by these changes,” says Dr. Hurwitz. “These communities already face barriers to accessing basic health care services, and the overturn of Roe v. Wade will now increase lack of accessibility to reproductive care. The inability to take time off from work [or afford] to travel to a state where they can receive the care they need, an already elevated maternal mortality rate for Black birthing people, and secondary effects like an unwanted or unexpected pregnancy affecting job opportunities and higher education are all life-altering.”

Black women also experience higher rates of infertility than white women, but even still, are less likely to seek fertility treatment.

These effects may also impact LGBTQ couples looking to start or grow their families, who already face certain restrictions in accessing fertility treatments due to a narrow definition of infertility that often prohibits ART services being covered by insurance.

A note from Motherly

Take heart that as of right now, fertility treatments are still allowed in each state, Dr. Shepherd stresses. “If fetal personhood bills were to be put in place, that could take a while, so while not out of the realm of possibility, at the moment patients should continue to explore their options and speak with their doctors as needed,” she adds.

Most state bans do not explicitly feature language about lab-created embryos or other ART, but with so much left to interpretation, more clarity is needed for doctors to be able to do their jobs with confidence, and to maintain access to these treatments. It’s important to remember that abortion is a healthcare issue, reminds Dr. Shepherd. But by politicizing it, we’re creating an even greater health equity issue.

Featured experts

Joshua Hurwitz, MD, is double board-certified in obstetrics and gynecology and reproductive endocrinology and infertility. Dr. Hurwitz is a partner in reproductive endocrinology at Illume Fertility, which has practices in New York and Connecticut.

Jessica Shepherd MD, MBA, FACOG, is the Chief Medical Officer for Verywell Health. She is the founder and CEO of Sanctum Med + Wellness, a wellness concierge practice and is affiliated with Baylor University Medical Center in Dallas, TX.