Now that the Court Nixed Abortion, Could IVF Be Next? 

As many as 30 states could ban the infertility treatment as they toy with new definitions of personhood, advocates warn

On the face of it, the end of federally protected abortion rights should not impact the availability or legality of in vitro fertilization.

And yet the Supreme Court’s 6-3 decision Friday overturning a woman’s constitutional right to terminate an unwanted pregnancy could have far-reaching effects on the ability of women to get medical assistance to conceive a child. 

Now that state governments can ban doctors from performing abortions, the debate over whether and at what stage of human development a life begins threatens to restrict doctors’ ability to use IVF to help a woman conceive. 

To improve the odds of success with IVF treatment, a doctor commonly extracts more than one egg from a woman’s body to be combined with the sperm in a lab culture. But typically just one of the successfully fertilized embryos is then implanted in the mother’s womb (or the womb of a surrogate). Any remaining fertilized eggs are then typically destroyed. 

Does the Supreme Court’s undoing of Roe v. Wade mean fertilized eggs left over from an IVF treatment now have the right to life? Will discarding fertilized eggs become grounds for homicide? 

Such once-unthinkable questions have assumed sudden urgency since a draft version of the Supreme Court reversal of Roe v. Wade was leaked in May. 

Power, a group that connects women struggling to conceive a child with clinical fertility trials, found that in vitro fertilization is responsible for about 50,000 births that might otherwise not have been possible each year, Newsweek reports.

Incredibly, Power and the Guttmacher Institute, a pro-choice research organization, estimate that the overturn of Roe v Wade could result in as many as 30 states banning IVF. 

In May, Louisiana narrowly failed to pass legislation that would have defined “personhood” as starting at the moment of fertilization. That same month, Oklahoma passed the nation’s strictest abortion ban, which stretches the definition of “unborn child” to cover any stage during the gestational process. (In strictly medical terms, a woman must be pregnant for about eight weeks for an embryo to develop into a fetus.)

And that’s only one of several worst case scenarios. Emergency contraceptives might be the next target.

In a separate opinion in agreement with the court majority, Supreme Court Justice Clarence Thomas on Friday called for overturning the constitutional rights that guaranteed access to contraceptives, such as the morning-after pill and Mifepristone, which can end a pregnancy that is less than 10 weeks along.

Immediately following announcement of today’s ruling, Attorney General Merrick Garland said states cannot ban the abortion pills mifepristone and misoprostol, which the FDA’s expert judgment has deemed safe and effective. Already, almost half of the state in the U.S. have banned or tightly restricted abortion pills, and more could soon follow suit, Axios reported.


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