On Friday, the Supreme Court released its decision in Dobbs v. Jackson Women’s Health Organization, overturning the landmark Roe v. Wade ruling that guaranteed a right to abortion care. In addition to ending abortion access for many, the Dobbs ruling may have far-reaching impacts on building families with its impact going beyond its most obvious implications. While there is an important discussion of how the decision will affect abortion, we look specifically at how the repeal of Roe will affect other reproductive health care — and particularly, infertility care.
Several states have introduced bills that would define a fetus as a person. Defining life as beginning at conception has major implications for infertility care, an estimated $8 billion industry that aided in the births of over 83,000 children in 2019 alone.
As a recent Washington Post article makes clear, assisted reproductive technologies that bring together eggs and sperm outside the body to create an embryo, such as in vitro fertilization (IVF), would have a highly uncertain legal status — unless laws that define life as beginning at fertilization clarify the status of those embryos’ creation, storage and possible destruction.
But our ongoing research suggests that the infertility industry may largely escape the new abortion regulations — at least, for now.
Abortion rights protests have been peaceful. Will that change?
Some abortion bans exempt IVF
Increasingly, state legislatures that pass laws restricting abortion have included explicit exemptions for the fertility industry. Since 2010, states have introduced or passed 83 bills that mention both abortion and IVF. Of these, 45 bills explicitly exempt IVF and assisted reproductive technologies. None of these bills explicitly included IVF — or any reproductive technology — in banning abortion or defining legal personhood as beginning at conception.
Indeed, the Louisiana legislature recently refused to pass an abortion ban bill that would have criminalized some aspects of IVF, instead moving forward a different abortion ban that explicitly exempted both contraception and IVF. More recently, Oklahoma passed a more expansive abortion ban that had no specific exemption for assisted reproductive technologies. However, the bill’s sponsor later asserted that the law would not ban IVF, despite the bill’s vague language.
Most Americans don’t object to IVF
Our new research finds that while various racial, ethnic and religious groups express widely varying levels of trust in medicine, science, and new technologies, very few groups believe IVF to be objectionable, or even a moral issue. Nor do many groups even see IVF and abortion in the same light.
According to research by one of us, Heather Silber Mohamed, using 2013 Pew Research Center data, less than 20 percent of respondents who view abortion as morally wrong also describe IVF in these terms. Our preliminary analysis of new data from the 2020 Collaborative Multi-Racial Post-Election Survey confirms these findings, revealing high support for IVF among a diverse cross-section of the U.S. public. Among individuals who oppose abortion, only 11.7 percent of White respondents and roughly 17 to 18 percent of Black and Latino respondents express moral opposition to IVF. Moreover, a substantial majority of Americans agree IVF can “be a big help” to people trying to get pregnant, while nearly half support requirements for insurance plans to cover the high costs of IVF.
IVF: An issue without a party
Only one federal law regulates the infertility industry, although the Centers for Disease Control and Prevention, and the Food and Drug Administration offer some oversight. While many state legislatures have been eager to regulate abortion since the 1970s, they’ve been much slower to introduce or pass bills about assisted reproductive technologies and infertility care. Research shows that while some states have regulated the infertility industry since the early 1990s, there is no clear “side” to the issue: Both parties seek to regulate the industry, though in different ways.
In her research on egg donation, a technology commonly used in IVF, Erin Heidt-Forsythe finds that Democratic and Republican women introduce bills at higher rates than their male colleagues. Republicans’ bills are more likely to limit payment to egg donors and require informed consent. Democrats’ bills are more likely to propose limits on what happens to embryos left over after IVF and to protect parents who use egg donation.
In the same study, she found Republican-controlled states like Arizona and Louisiana have used language that echoes antiabortion and fetal personhood rhetoric to justify regulating commercial aspects of the infertility industry. For instance, in one case, an Arizona Republican argued that limiting compensation for egg donation would discourage “researchers who allow women to put their health at risk by harvesting their eggs,” making that proposal both “a pro-life bill and pro-woman bill.”
One conservative Democrat in the Republican-controlled Oklahoma legislature argued, “we are endangering young women’s lives … for a massive egg harvesting industry” and that it is a “human life issue.” Both these claims echo common antiabortion language.
In contrast, states like New York and California, where Democrats control the legislatures, have erected legislative firewalls between their large infertility industries and stem cell research. While they leave assisted reproductive technologies for infertility largely unregulated, they regulate the same technologies — such as the use of embryos leftover from infertility treatments — in embryonic stem cell research.
Since both red and blue states have carefully avoided limiting infertility treatments, antiabortion laws are not likely to do so either.
The infertility industry after Roe
What does this mean for individuals who want to pursue IVF and for practitioners who offer these treatments? While more states will likely move quickly to ban abortion, our research suggests these bans will increasingly and explicitly exempt IVF. In protecting infertility care, individual states may regulate different parts of the infertility industry. For example, Republican-controlled states may limit compensation to donors or restrict how infertility clinics can advertise, while Democrats may reinforce parental rights through limiting or preventing the ability of egg and sperm donors to make legal claims to donor-conceived children.
However, as they try to separate abortion from infertility care, states are drawing increasingly complicated lines about personhood and who can and should have access to reproductive care. The definition of life — inside and outside a body — is increasingly fraught. Can an embryo be defined as a life inside a pregnant person but only as potential life in a lab?
What’s more, new regulations may inadvertently limit such common IVF practices and procedures such as testing embryos for genetic abnormalities before transfer, making assisted reproduction more difficult and expensive. While total bans are unlikely, hastily prepared legislation and vague language could have unintended consequences for fertility treatments and related technologies.
Don’t miss any of TMC’s smart analysis! Sign up for our newsletter.
Erin Heidt-Forsythe (@heidtforsythe) is an associate professor of women’s, gender, and sexuality studies and political science, associate director of the Rock Ethics Institute at Penn State University, and author of “Between Families and Frankenstein: The Politics of Egg Donation in the United States” (University of California Press, 2018).
Nicole Kalaf-Hughes is an associate professor of political science at Bowling Green State University.
Heather Silber Mohamed (@HeatherSilberMo) is an associate professor of political science at Clark University, and author of “The New Americans: Immigration, Protest, and the Politics of Latino Identity” (University Press of Kansas, 2017).
Women of color want reproductive justice, not just abortion rights
Half of Americans support abortion on demand
If the Supreme Court undermines Roe v. Wade, contraception could be banned
Evangelicals opposed abortion long before their leaders caught up
Conservative Republican women have led the fight to restrict abortion
The Supreme Court might overturn Roe. It took decades of scorched-earth conservative politics to get here.