Changing Abortion Laws Cast Uncertainty on Future of Fertility Preservation

The US Supreme Court ruling that overturned Roe v Wade has enabled changes to abortion laws that could have unintended consequences for cancer patients and others seeking fertility preservation.^1-3

The Dobbs v Jackson Women’s Health Organization ruling has led to abortion bans and restrictions in some US states and may result in additional restrictions in the future. These changes have not yet affected assisted reproductive technology (ART) and other fertility preservation efforts, but some health care providers and patients are worried about what the future holds.

A recent report by the American Society for Reproductive Medicine (ASRM) analyzed the so-called trigger laws in 13 states that ban or severely restrict abortions.² Some of these laws have already taken effect, and others are expected to take effect in the near future.³  

The ASRM report concluded that most of the laws should not impact in vitro fertilization (IVF) or other ART procedures because they define abortion specifically as terminating a pregnancy and do not apply to embryos and other tissue outside the body.² 

An exception may be the trigger law in Utah, which has not yet taken effect. The report stated that this law “could be interpreted to have an impact on ART under the provision that defines abortion to include ‘[any] intentional killing or attempted killing of a live unborn child through a medical procedure carried out by a physician or through a substance used under the direction of a physician.’”

The law defines abortion as the “killing of a live unborn child,” but does not define “live unborn child,” said Joyce Reinecke, JD, executive director of the Alliance for Fertility Preservation in Lafayette, California, which focuses on fertility preservation access for cancer patients. The alliance is partnering with ASRM and other medical groups to follow abortion bills. 

“When the life at issue is decoupled from pregnancy itself …, that is where the concern is for ART services or IVF procedures,” Reinecke noted.

The State of Abortion Laws

The Utah trigger law is not yet in effect because a judge blocked it in response to a lawsuit stating that the law violated the state constitution.^4,5 Ultimately, the matter will likely be decided by the Utah Supreme Court.⁶

Nebraska is another state where the legal status of abortion has threatened to jeopardize the future of fertility treatment. In April, the state legislature narrowly defeated a trigger bill that defined an embryo created in a laboratory as an unborn child and could have made it a felony for physicians to perform standard-of-care IVF.^7,8  

Because of the broad language in the bill, physicians and clinic staff could have been criminally liable if embryos that were intended for implantation stopped developing in the laboratory or didn’t survive the freeze-thaw cycle, said Elizabeth Constance, MD, director of the fertility preservation program at Heartland Center for Reproductive Medicine in Omaha, Nebraska.

If that law had passed, Dr Constance and her colleagues may have been forced to implant embryos immediately after fertilization, rather than culturing and freezing them, which would dramatically reduce IVF success rates, she noted. In that scenario, IVF becomes so impractical and cost-ineffective that “we are in a position where we have to shut our doors,” she said.

Since April, Dr Constance and her colleagues have been talking with Nebraska senators about the importance of ensuring that any upcoming legislation does not threaten fertility treatment. Dr Constance and colleagues also created a Facebook group called “Save IVF Nebraska” to encourage patients, families, and supporters to share their stories and reach out “en masse” to their senators, she said.

For now, it appears that abortion will remain legal in Nebraska, though abortions after 20 weeks are banned in the state. Nebraska’s governor recently announced that he will not call a special session to amend the state’s abortion laws, due to a lack of legislative support.⁹ 

On the other hand, total or near-total abortion bans are now in effect in Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, Oklahoma, South Dakota, Tennessee, and Texas.³

The ASRM report² suggests that none of these bans are likely to affect fertility preservation, but abortion laws may be open to interpretation, said Sean Tipton, chief advocacy and policy officer for ASRM in Washington, DC.  

Legal Language and Personhood Bills 

The most likely way that abortion bans could restrict ART options is that “a sloppily worded piece of legislation gets through rather than something that explicitly targets IVF,” Tipton said. 

The good news is that “very ardent right-to-life legislators” are saying they do not want to pass any laws that limit fertility treatments, Tipton added. 

“That is an easy fix,” he said. “We can help with that; it is very easy to craft an abortion restriction which in no way impacts infertility care.” For example, abortions are banned in Alabama, but the law specifically makes an exception for fertilized eggs in a laboratory.¹⁰ 

Still, there has been a lot of concern in the medical and legal communities related to so-called personhood bills, which would give embryos and fetuses the same legal rights as people. These bills could make it illegal to discard unused embryos or do preimplantation genetic screening, which can be particularly important for patients with hereditary cancers.¹¹ 

States have already passed restrictions on what can be done with embryos. For example, a Louisiana law passed in 1986 prohibits the discarding of embryos created through IVF, unless an embryo fails to develop after 36 hours.^12,13 Similarly, states have already passed, or attempted to pass, laws that ban abortions in cases of fetal genetic abnormality.¹⁴ 

However, current abortion bans do not confer rights to embryos outside the context of pregnancy, and personhood bills that did would be difficult to pass, according to Tipton. 

“Most effective anti-choice groups understand that that is a political loser,” he said. Likewise, Tipton said it is hard to imagine laws that would give legal rights to eggs or sperm and restrict freezing of these tissues. 

Implications for Patients and Providers

As the laws continue to change, patients seeking fertility treatment are grappling with the uncertainty. 

“We are actually spending a lot of time trying to reassure our patients that nothing has changed here and that we are continuing to proceed as usual with standard-of-care medical therapies, including IVF and fertility preservation,” Dr Constance said. 

The American Society of Clinical Oncology (ASCO) recommends that health care providers discuss the possibility of infertility with adult and pediatric cancer patients as early as possible before treatment initiation and refer patients who are interested in fertility preservation to reproductive specialists.¹⁵ 

Talking with patients about fertility preservation can reduce distress and improve quality of life, according to the ASCO guidelines. However, research suggests that many cancer patients may not have adequate information on fertility planning. A study of nearly 7000 cancer patients showed that only 44% received counseling about the risk of infertility associated with chemotherapy.¹⁶ 

“I certainly wouldn’t want to see the changing legal environment lessen [the use of fertility preservation services] more than it already is,” Dr Constance said. 

That is why it is critical for health care providers and patients to engage with policymakers, according to Don Dizon, MD, professor of medicine and surgery at Brown University in Providence, Rhode Island, and a member of Cancer Therapy Advisor’s editorial board. 

“Doctors need to be engaged in this conversation aggressively” because the next part of the conversation will be about how abortion restrictions may restrict reproductive endocrinology, Dr Dizon said. 

“We can’t sit back and assume that rights are not going to be taken away because I think so many of us assumed that Roe would not be overturned, and here we are,” he added. 

Dr Dizon noted that he has seen a lot of physicians speaking up and writing about the harm that abortion bans could have on patients with cancer. In particular, there are concerns that abortion bans could prevent optimal care for patients with cancer diagnosed during pregnancy — about 1000 people every year in the US — because the treatment might injure the fetus.¹⁷

Medical societies, including ASCO and the American College of Obstetricians and Gynecologists (ACOG), have issued statements saying that the Dobbs v Jackson Women’s Health Organization ruling threatens patient safety and the ability of patients and their doctors to determine the most appropriate care.^18,19

These statements are “a really large step,” Dr Dizon said. “If we speak with one voice, hopefully, they will listen to us.”

Disclosures: Dr Dizon reported consulting for Midi, a women’s health platform. Reinecke, Dr Constance, and Tipton reported no conflicts.

References

1. Duignan B. Dobbs v. Jackson Women’s Health Organization law case. Britannica. Updated August 5, 2022. Accessed September 1, 2022. 
2. American Society for Reproductive Medicine Center for Policy and Leadership. State abortion trigger laws: Potential implications for reproductive medicine. Updated July 1, 2022. Accessed September 1, 2022. 
3. Durkee A. As 3 more abortion trigger bans take effect, here’s where laws are being enforced — And where they’ve been blocked. Forbes. Published August 25, 2022. Accessed September 1, 2022. 
4. Miller J. Planned Parenthood of Utah files suit, asking court to declare state’s abortion ban unconstitutional. The Salt Lake Tribune. Published June 25, 2022. Accessed September 1, 2022. 
5. Miller S. Judge blocks Utah’s abortion trigger law. KUER Public Radio. Published July 11, 2022. Accessed September 1, 2022. 
6. Stern EA. What’s next for abortion in Utah? Published August 23, 2022. Accessed September 1, 2022. 
7. Hammel P. ‘Trigger’ abortion bill fails by two votes to overcome eight-hour filibuster. Nebraska Examiner. Published April 6, 2022. Accessed September 1, 2022. 
8. Tipton S, Robins J. Not just abortion: How the demise of Roe v Wade may impact fertility care. Contemporary OB/GYN Journal. 2022;67(7):9-11.
9. Beck MA. Nebraska won’t hold special legislative session on abortion. AP News. Published August 8, 2022. Accessed September 1, 2022.
10. Newkirk M. Why Alabama’s abortion law includes an exemption for infertility. Bloomberg News. Published May 29, 2019. Accessed September 1, 2022. 
11. Preimplantation Genetic Testing: ACOG Committee Opinion, Number 799. Obstet Gynecol. 2020;135(3):e133-e137. doi:10.1097/AOG.0000000000003714 
12. Catchings HC. A “modern family” issue: Recategorizing embryos in the 21st century. LA L Rev. 2020;80(4):1522-1556.
13. Glaser B. The fertility dilemma: Frozen embryos. KPLC News. Updated March 27, 2009. Accessed September 1, 2022. 
14. Bayefsky M. Who should regulate preimplantation genetic diagnosis in the United States? AMA J Ethics.2018;20(12):E1160-E1167. doi:10.1001/amajethics.2018.1160
15. Oktay K, Harvey BE, Partridge AH, et al. Fertility preservation in patients with cancer: ASCO Clinical Practice Guideline update summary. J Oncol Pract. 2018;14(6):381-385. doi:10.1200/JOP.18.00160
16. Patel P, Kohn TP, Cohen J, Shiff B, Kohn J, Ramasamy R. Evaluation of reported fertility preservation counseling before chemotherapy using the Quality Oncology Practice Initiative Survey. JAMA Netw Open. 2020;3(7):e2010806. doi:10.1001/jamanetworkopen.2020.10806
17. Harris LH. Navigating loss of abortion services – A large academic medical center prepares for the overturn of Roe v. Wade. N Engl J Med. 2022;386(22):2061-2064. doi:10.1056/NEJMp2206246 
18. The American Society of Clinical Oncology. ASCO statement on Supreme Court decision in Dobbs v. Jackson Women’s Health. Published June 27, 2022. Accessed September 1, 2022. 
19. The American College of Obstetricians and Gynecologists. ACOG Statement on the decision in Dobbs v. Jackson. Published June 24, 2022. Accessed September 1, 2022.