Anti-Life Legislation: How the reversal of Roe v. Wade may impact IVF viability

Rachel Sender //

My senior year of college I was sent to the hospital after fainting in a lobby. I had sudden severe abdominal pain, nausea, and had just begun my period. After ruling out appendicitis and ovarian cysts, the doctor told me that I most likely had endometriosis. This diagnosis was unsurprising as my mother had it too, and there is evidence that it may be genetic.  

Endometriosis is a common condition (affecting 1 in 10 women) that often leads to painful and debilitating menstrual cycles and may make becoming pregnant extremely difficult [1]. My mother was diagnosed after many years of unsuccessfully trying to become pregnant. Fortunately, she was able to access what was then an exciting new procedure called in vitro fertilization (IVF), which had just become available in the United States in 1985. My brothers and I, a set of test-tube triplets, were born in the fall of 1991.

Today, IVF is common practice for those struggling to become pregnant and is a growing need; births in the U.S. resulting from IVF increased from 1.6% in 2015 [2] to 1.9% in 2018 and continue to grow yearly [3]. 

This upward trend may all change, however, now that in the fall of 2021 the Supreme Court will hear a case from Mississippi, which calls for the reversal of Roe v. Wade (1973) [4]. Dobbs v. Jackson Women’s Health Organization [5] contests a Mississippi law that prohibits abortions after 15 weeks of pregnancy. 

In Dobbs, Mississippi has asked the Supreme Court to overturn Roe. While Roe v. Wade directly concerns abortion rights, the current case may lead to future decisions that impact women’s reproductive rights more broadly, especially if the Court adopts a definition of life beginning at conception, a common pro-life assertion reiterated in this case. By agreeing to hear Dobbs, and more recently not stepping in to stop Texas from banning abortions after 6 weeks of pregnancy [6], the Supreme Court has made it painfully clear that it is open to considering pro-life legal arguments.

A quick review of Roe reveals that its legal underpinning is far more precarious than many people may realize. The Roe decision was based on the due process clause of the Fourteenth Amendment: “nor shall any state deprive any person of life, liberty, or property, without due process of law.” In the decision Griswold v. Connecticut (1965) [7], the Supreme Court had interpreted the due process clause to include a “right to privacy” while ruling that a Connecticut law that banned the use of birth control for married couples was unconstitutional. The “right to privacy,” which is not explicitly stated in the Constitution, was also the constitutional basis for Roe

The current challenge to Roe first points out the lack of definitive language regarding privacy in the constitution. The brief submitted by Mississippi argues “[t]he conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition…Roe broke from prior cases by invoking a general ‘right of privacy’ unmoored from the Constitution.” [5] Mississippi’s brief also argues that Roe is an outlier Supreme Court decision, at odds with its other decisions aimed at protecting human life. Here, Mississippi’s and supporting briefs use language that sets the stage for an argument that jeopardizes the legality of reproductive practices beyond abortion, including IVF.

Mississippi cites cases connected to assisted suicide for the proposition that the “Court has refused to hold in any other context that liberty or privacy interests support a constitutional right to effect ‘the purposeful termination’ of a human life.” [5] Supporting briefs go further, calling on the Court to “affirm the constitutional authority of the federal and state governments to safeguard the lives and health of their citizens, born and not yet born” (emphasis added). [8] This language is dangerous because it frames abortion as murder and even potentially sets the stage for granting the rights of citizenship to the unborn, potentially including embryos as well as fetuses. In 2011, Mississippi proposed Initiative 26 (the “personhood” amendment), which defined life as beginning at conception [9]. While this legislation did not pass at the time, Republican politicians, such as Gov. Mike Huckabee and Sen. Marco Rubio, have shown continued support for defining life as beginning at conception and for giving citizenship rights to the unborn [10]. With the Supreme Court agreeing to hear Dobbs, potentially allowing the ban of abortion at 15 weeks, and its refusal to block Texas banning abortions at 6 weeks, it is clear that the possibility that radically anti-choice legislation will be allowed to stand is gaining substantial traction.

Allowing a state or the federal government to make laws based on the belief that human life begins at conception could have serious consequences for the continued viability of IVF. Common and necessary IVF practices, such as freezing unused embryos for potential future use, could be outlawed if each embryo is deemed to be a human life worthy of legal protection. In arguments over IVF and related issues, such as stem cell research, the freezing of unused embryos has been equated to murder. [11, 12]

Currently, IVF treatment involves hormone treatments that encourage the body to release many eggs at once during ovulation rather than the usual one egg. These eggs are then harvested surgically and fertilized with sperm from a partner or a donor.  Three to five days after fertilization multiple embryos are placed in the parent’s uterus with the hope that one will attach, resulting in pregnancy.  Unused embryos are frozen for potential future use in case pregnancy is not achieved with the initial procedure [13]. There is no guarantee, however, that these frozen embryos will be needed if the first round is successful. They may remain in banks, be donated, or otherwise disposed of. The ability to freeze embryos for future use would most likely become illegal if life is to be defined as beginning at conception.

Freezing embryos for use in successive attempts at pregnancy is important for IVF to continue as a relatively safe, relatively accessible procedure. In the early years of IVF, it had been common to place four or more embryos in the uterus to increase the odds of a pregnancy.  My brothers and I are the result of such a procedure. We were lucky; my mother was able to carry my triplet brothers and I almost to term, and we suffered no ill-effects from being high-order multiples. Of course, this is not always the case. Over the years, recognition of the heightened risks of such pregnancies led to reliance on freezing embryos as a method of increasing the odds that one round of hormone treatments and surgical egg extraction could result in pregnancy. It is common for an average of 10 eggs to be harvested and inseminated, and only 1-2 embryos implanted, meaning most of the embryos are frozen for later use [14]. The practice of freezing embryos allows the potential parents multiple attempts at pregnancy without the risk of higher-order multiples and without the financial and medical costs of additional rounds of hormone treatments.

The cost of IVF under current circumstances is substantial, already limiting its accessibility. The current cost of a round of IVF – including harvesting and implanting the eggs — is roughly $12,000 in the U.S, with a 42.4% success rate. The medication needed for the hormone treatment can bring this cost up to an average of $25,000 [15]. If practitioners cannot rely on the practice of freezing extra embryos that result from a round of IVF, the cost would greatly increase, making IVF even less viable financially than it already is.

We can look to Italy to illustrate the current threat to IVF in the United States. In 2004, factions in Italy asserting that human life begins at conception succeeded in placing three key legal restrictions on IVF: 1. limiting the number of embryos that could be created each IVF cycle to three; 2. requiring all embryos be transferred to the uterus; and 3. banning the freezing of any embryos [16]. These restrictions were all aimed at protecting against the destruction of unused embryos. While these restrictions did not ban IVF outright, they led to an increase in costs, decrease in success rates, and an increase in overall risk to the parent. The current success rate of 42.4% for a round of IVF in America would greatly decrease if the number of embryos created per round were limited to three rather than the current norm of 10. This limit would also lead to the necessity of more rounds of IVF to reach a successful pregnancy and an increased risk of dangerous multiples pregnancies. [17]

Although the case that Mississippi has brought to the Supreme Court does not explicitly discuss IVF, the arguments made by Mississippi and its supporters present a real threat to its viability as a reproductive option for many Americans. In Italy, political factions were able to change laws regulating IVF to reflect their belief that life begins at conception. These changes made IVF a more expensive and dangerous procedure with less chance of success. Although IVF is not yet under direct attack in America, the recent cases promoting anti-choice legislation could certainly lead us down a similar path. Indeed, if the “unborn” and therefore embryos are given citizenship because of current or future cases, embryo creation and manipulation may be restricted or prohibited. Granting citizenship to the unborn would result in expansive changes to medical procedures such as IVF.

For so many people trying to start families, IVF is a beacon of hope. While IVF, a procedure that begins a pregnancy, is presently considered to be less controversial than a medical procedure that ends one, their legal fates are intimately intertwined. The precarity of Roe v. Wade does not offer substantial protection against life being defined as beginning at conception, and thus more than just the right to have an abortion is at stake. The right for people (especially the many of us with medical conditions) to have children safely is at stake as well.

Author Bio: Rachel Sender is a PhD candidate studying Biological Anthropology at Washington University. Her research focuses on the mechanics of how teeth resist fracture to better understand fossil human dietary adaptations. She is also passionate about science communication and plans on pursuing a career in science journalism after completing her PhD.

Image: the author as a child with her two siblings.

References

[1] Facts about endometriosis. (2020). Endometriosis.Org.

[2] Centers for Disease Control and Prevention. (2015). Assisted reproductive technology success rates: National summary and fertility clinic reports. Retrieved from https://www.cdc.gov/art/pdf/2015-report/ART-2015-National-Summary-Report.pdf

[3] Centers for Disease Control and Prevention. (2018). Assisted reproductive technology success rates: National summary and fertility clinic reports. Retrieved from https://www.cdc.gov/art/pdf/2018-report/ART-2018-Clinic-Report-Full.pdf

[4] Roe v. Wade, 410 U.S. 113 (1973).

[5] Dobbs v. Jackson Women’s Health Organization, No. 19-1392. (2021). BRIEF FOR PETITIONERS. Retrieved from https://s3.documentcloud.org/documents/21014956/mississippi-supreme-court-roe-v-wade.pdf

[6] Fritze, J. (2021, September 2). Supreme Court Declines to Block Texas Abortion Law that Bans Procedure After 6 Weeks. USA Today. Retrieved from: https://www.usatoday.com/story/news/politics/2021/09/02/supreme-court-declines-block-texas-six-week-abortion-ban/5662204001/

[6] Griswold v. Connecticut, 381 U.S. 479 (1965).

[7] Dobbs v. Jackson Women’s HealthOrganization, No. 19-1392. (2021). BRIEF AMICI CURIAE OF 228 MEMBERS OF CONGRESS IN SUPPORT OF PETITIONERS. Retrieved from https://www.hydesmith.senate.gov/sites/default/files/2021-07/Dobbs%20v%20JWHO%20Amicus%20Brief%20MOC.pdf

[8] Davis, M. (2014). Maryland “embryo adoption”: Religious entanglement in the Maryland Stem Cell Research Act of 2006. University of Pennsylvania Journal of Law and Social Change, 17(3), 291-327.

[9] Seelye, K. Q. (2011, November 8). Mississippi voters reject anti-abortion measure. The New York Times. Retrieved from https://www.nytimes.com/2011/11/09/us/politics/votes-across-the-nation-could-serve-as-a-political-barometer.html

[10] Sarkar, S. (2021, September 1) When Human Life Begins is a Question of Politics – Not Biology. The Conversation. Retrieved from: https://theconversation.com/when-human-life-begins-is-a-question-of-politics-not-biology-165514

[11] Boys, S., & Walsh, J. S. (2017). The dilemma of spare embryos after IVF success: Social workers’ role in helping clients consider disposition options. Advances in Social Work, 18(2), 583-594. doi: https://doi.org/10.18060/21551

[12] A Step by Step Look at the IVF Process. (2020). https://www.pennmedicine.org/updates/blogs/fertility-blog/2020/april/how-does-the-ivf-process-work.

[13] McAvey, B., Zapantis, A., Jindal, S., Lieman, H. J., & Polotsky, A. J. (2011). How many eggs are needed to produce an assisted reproductive technology baby: Is more always better? Fertility and Sterility, 96(2), 332-335. doi: https://doi.org/10.1016/j.fertnstert.2011.05.099

[14] Amy Klein. (2020, April 18). I.V.F. is Expensive. Here’s How to Bring Down the Cost. The New York Times. Retrieved from https://www.nytimes.com/article/ivf-treatment-costs-guide.html

[15] Benagiano, G., & Gianaroli, L. (2004). The new Italian IVF legislation. Reproductive BioMedicine Online, 9(2), 117-125. doi: https://doi.org/10.1016/s1472-6483(10)62118-9

[16] Boys, S. K., & Harris, E. M. (2020). IVF and the Anti-Abortion Movement. Advances in Social Work, 19(2), 518–533. https://doi.org/10.18060/22629

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