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Roe v Wade and Reproductive Treatments

Adapted from What Overturning Roe v Wade May Mean for Assisted Reproductive Technologies in the US published in Journal of American Medical Association, June 2022.

Overturning Roe v Wade essentially stripped away any special federal constitutional protection for abortion in the US. Even though much of the world's attention is focused on the implications for abortion, it is also important to consider the collateral consequences for assisted reproductive technologies in the US.

Across the US, there exists a wide range of state laws regarding assisted reproductive technologies. For example, when couples divorce with embryos in frozen storage, states vary on whether they will enforce agreements regarding the disposition of the embryos. Without such agreements, states may permit the individual seeking to procreate with the embryos to go forward or, on the other hand, favor a so-called right not to procreate.

New state legislation that seeks to restrict in vitro fertilization (IVF) is easy to imagine. Germany, for example, prohibits the creation of more than three embryos per IVF cycle to avoid embryo destruction.

Could a state go further and prohibit IVF altogether? The key piece of the reasoning in the decision to overturn Roe v Wade was that a "right to abortion is not deeply rooted in the Nation's history and traditions." This would seem to apply with even more force to IVF, which was first used in the US in 1981, and certainly was not present at the time of the framing of the Fourteenth Amendment (1868).

A future Supreme Court opinion might easily group embryo destruction as more like abortion because of its involvement with the destruction of "potential life." Virtually every IVF clinic in the nation provides embryo cryopreservation services. In addition, nearly half of all IVF cycles in the US include preimplantation genetic testing, in which cells are biopsied from a developing embryo to determine the health of any resulting child.

Both cryopreservation and preimplantation genetic testing often result in embryo discard, either because patients no longer wish to procreate with stored embryos or because test results reveal genetic abnormalities associated with adverse health outcomes.

Although both techniques promote healthy pregnancies and offspring, neither can reasonably be categorized as prioritizing potential life over the needs and desires of the parent. Thus, laws restricting or even prohibiting embryo freezing and preimplantation genetic testing could survive constitutional challenges under a post-Roe rubric.

The proposal to ban abortion from the moment of fertilization, as recently advanced in Oklahoma, calls into question the unrestricted access to any assisted reproductive technology in which an embryo is harmed or deprived of the opportunity for live birth. For these reasons, it will be difficult to argue for a constitutionally protected right to use various assisted reproductive technologies.

Abortion is intended to end a pregnancy, whereas IVF is used to bring about a pregnancy. In the post-Roe v Wade era, this may be a moment for federal or state legislative efforts to work to better secure reproductive justice.

July 2022


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