Earlier this month, Politico leaked the draft opinion on the Dobbs v. Jackson case, which challenges Mississippi’s ban on abortion after 15 weeks. If upheld, the opinion written by Supreme Court Justice Samuel Alito would overturn Roe v. Wade, the landmark case that established people’s right to an abortion. In the draft opinion, Alito called Roe “wrong from the start” and argued that it destroys “fetal rights.” The draft opinion also emphasized the belief that life begins at conception and that embryos are considered unborn children at the moment of fertilization — a stance that’s already stated in antiabortion trigger laws in states like Tennessee, Arkansas, and Kentucky.
If the draft opinion is upheld, it will not only end the federal protections in place that uphold abortion rights, but it could also call into question the legality of several other reproductive laws and practices, including in vitro fertilization (IVF). While we likely won’t receive the final word on the decision until June, experts are already speculating about the future. “A whole host of reproductive decisions are threatened by the overturn of Roe v. Wade, including the pursuit of IVF as a way to get pregnant,” Noreen Farrell, executive director of Equal Rights Advocates, says.
What Could the Overturn of Roe v. Wade Mean For IVF?
“There are some very real reasons to be concerned about what comes next for IVF,” Cathryn Oakley, director of state legislative affairs and senior counsel at the Human Rights Campaign, says.
To understand the consequences, it’s important to first understand the process. During IVF, a sperm and an egg are fertilized outside of the human body in a lab to create an embryo. That fertilized embryo is implanted into a uterus in hopes that it will develop into a fetus. If we move forward with the logic used in the draft opinion (that life begins at conception and conception is the moment of fertilization), then “even before it’s been implanted into a uterus, that embryo is given, basically, personhood, under that theory,” Oakley explains. “That means that it has to be treated as a person and that it has legal rights.”
This is problematic considering IVF generally involves fertilizing multiple eggs and then discarding (rather than implanting) those that are not viable or needed, Farrell says. “If you’re considering an embryo a person, all of those things become extremely morally and ethically complicated,” Oakleys explains, and that can become legally complicated as well.
Scientists (and anyone who’s had experience with IVF) know that just because a sperm and an egg have met and formed an embryo, it doesn’t equate to that embryo becoming a person. In fact, failed implantation is quite common: for women under 35, the percentage of live births via IVF is 55.6 percent, according to the Society for Reproductive Technology. Still, if the draft opinion is upheld, it “could throw the procedure into legal jeopardy,” Farrell says.
What does “legal jeopardy” mean? Well, ultimately, if Roe v. Wade is overturned, there’s no way to know exactly what actions politicians will take against IVF. One thing is clear, though: the doors would be open for them to place a number of restrictive laws on the assisted-fertilization process. By extending the logic in the draft opinion, they could rule certain elements of IVF unethical or illegal. It may not happen immediately upon the overturning of Roe, but IVF could be the next reproductive right to be impacted by restrictive legislation.
What Can We Do to Prevent This From Happening?
If Roe v. Wade is overturned by the Dobbs decision, each state will be given the authority to restrict or ban abortion. As for what you can do about it, Oakley says to “fight back against those laws” in your state. Find out what the legal status of abortion might be in your state if Roe v. Wade is overturned. (For context, 26 states are already certain or likely to ban abortion if the draft opinion sticks, per the Guttmacher Institute.) Once you find out where your state stands, immediately go lobby your lawmakers by meeting with them in person or by writing a letter or email, Oakley suggests. Let your elected officials know how these pieces of legislation will impact you.
It’s also worth stressing to lawmakers that reproductive healthcare covers a range of procedures, including medically assisted miscarriages, which can be necessary in order for someone to complete a miscarriage and move on to their next intended pregnancy, Oakley says. “The actual implications of these laws for people who are trying to get pregnant are tremendous, [as they’re] related to IVF and other fertility services as well,” she points out.
It’s also important that you vote in the upcoming midterm election for a candidate who aligns with your stance on abortion and other reproductive rights.
How Do We Deal With “What If?” Anxiety in the Meantime?
“Unfortunately, this is one of those things people should be anxious about,” Oakley says. “It should be scary for everyone who has a reproductive system, which is all of us.”
You can turn that anxiety into action by lobbying your lawmakers, as suggested earlier, or by taking one of these actionable efforts today. And if you’re feeling far too overwhelmed by the news and all of the waiting, Farrell encourages people to “seek medical and mental health professionals to help with anxiety, and join a community that feels the same as you do on these issues for support.”