Andi St. Pierre sobbed when she received a text from her husband on June 24. The U.S. Supreme Court had overturned Roe v. Wade, and St. Pierre’s years of fertility treatment, involving frequent out-of-state travel, seemed at risk.
St. Pierre, who is currently undergoing in vitro fertilization, or IVF, treatment, is one of thousands of people receiving fertility treatment across the country who could be indirectly affected by the fall of Roe, which for decades protected a constitutional right to abortion.
Infertility patients and advocates worry the wording of state abortion bans enacted since the Supreme Court’s decision will make IVF less accessible, while threatening doctors with fines or imprisonment.
Of particular concern are laws that could be interpreted as giving frozen embryos — commonly part of the IVF process — status as human beings, as well as conflicting legal definitions of what constitutes conception.
The concerns don’t end with patients such as St. Pierre. Across the country, providers, medical groups and hospitals, including primary care doctors and emergency room physicians, have been wrestling with the impact of Roe’s reversal. Some professionals have questioned whether they can properly treat high-risk pregnancies without fear of legal retribution.
The abortion bans could have far-reaching consequences for the estimated 1 in 8 couples who experience infertility in the U.S and the rising number of babies born from assisted reproductive technologies. Patients also fear medical emergencies that could lead to their death or serious harm if care is delayed or restricted.
“Why, after going through all this, do I worry that I wouldn’t be able to receive treatment?” St. Pierre said. “Why do I have to worry that I might die from trying to have a child?”
Abortion rights demonstrators walk down Constitution Avenue during the Bans Off Our Bodies march in Washington, D.C., on May 14, 2022.
Anna Moneymaker via Getty Images
In IVF treatment, the goal is to generate as many eggs as possible, fertilize those eggs and either implant them with the hope of inducing pregnancy or freeze them for future use. Laws that govern how embryos are classified and handled could impact several stages of this process, patient advocacy groups say.
For St. Pierre, who lives in Georgia, her concerns began this summer when she had a miscarriage during her first IVF cycle.
Although her miscarriage occurred before Georgia’s six-week limit on abortion — passed in 2019 and enacted after the Dobbs v. Jackson Women’s Health Organization decision that ended Roe — she worries she could suffer repercussions, including delays in treatment or prosecution, if she has another miscarriage in the future.
Abortions and miscarriages are treated similarly, with doctors using the same evacuation procedures and medications. The overlap in treatment and the consequences of breaking an abortion ban — including fines, revoked licenses and jail time — are causing some providers to delay or deny medical care when a patient has a miscarriage.
“If a pregnancy spontaneously aborts or miscarries, sometimes that is not complete and it won’t evacuate on its own and you’ll need medical help to finish that,” said Sean Tipton, chief advocacy, policy and development officer at American Society for Reproductive Medicine, an association based in Washington, D.C. “That evacuation may be unavailable in states that have an abortion ban.”
About 10% to 15% of people who know they are pregnant will experience a miscarriage during the first trimester, according to the non-profit group March of Dimes.
The risk of miscarriage is even greater for patients like St. Pierre, who have a higher predicted rate of pregnancy complications, including miscarriages and ectopic pregnancies, compared to those who conceive without IVF.
“Because of the political climate and these [abortion] laws, I don’t feel safe,” St. Pierre said.
Although it’s federally illegal to deny life-saving medical care to patients, some states with abortion bans have pushed back on protections for the procedure, even in such cases.
In July, Texas sued the Department of Health and Human Services over federal guidance that abortions must be provided in emergencies, although the state’s abortion ban has an exception for life-threatening cases.
The threat of prosecution as a result of state abortion bans has carried across the healthcare system, including to IVF clinics, as some laws target providers directly.
“Our members in many states are reporting chaos and confusion,” Jack Resneck, president of the American Medical Association, testified during a House Oversight Committee meeting in July. “Physicians are worried about prosecution for their patients and themselves in the midst of significant legal uncertainty.”
States including Missouri, Arkansas and Tennessee have abortion bans that criminalize healthcare providers for performing the procedure. In Missouri, providers who are found guilty of violating the state’s abortion ban face five to 15 years in prison. Physicians in Arkansas face up to 10 years in prison and a fine as high as $100,000 for performing an abortion.
Variations in state law and unclear treatment of life-saving abortion care are making things difficult for providers.
“It’s very unclear what these laws mean for providers on a day-to-day basis,” Kristyn Brandi, board chair of advocacy group Physicians for Reproductive Health, said during a July Senate committee hearing.
Fertility providers, aware of the heightened risks surrounding their practices, also remain wary of state abortion bans, said Barbara Collura, CEO and president of Resolve, a national fertility advocacy group.
“We certainly know that the clinics today are very much on guard and are involving legal counsel,” Collura said. “Even if I say I believe that this piece of legislation is not going to impact care access, there could be a lawyer somewhere who interprets it differently.”
The anxiety surrounding enforcement has led to delays in fertility care, with clinics proceeding cautiously following the Supreme Court’s June decision, according to Alease Barnes, a traveling embryologist currently practicing in North Carolina.
“There were some patients scheduled on that day for procedures, and their procedures were canceled so that clinics could understand what the laws were and if they were able to provide care,” she said.
St. Pierre and her husband Denis hold hands outside their home in Georgia, on Oct. 2, 2022.
Photo: Amanda Greene for Industry Dive
St. Pierre’s IVF treatment lays on her bed in Georgia, on Oct. 2, 2022. In vitro fertilization can be a demanding and stressful process, requiring drug injections, blood tests and ultrasounds.
Photo: Amanda Greene for Industry Dive
While no abortion bans directly target fertility procedures, so-called personhood laws determine that life begins at fertilization. As a result, they could impact the thousands of embryos that are kept frozen in the U.S. In 2019, the Centers for Disease Control and Prevention found almost 40% of the 300,000 recorded assisted fertility cycles resulted in eggs or embryos that were cryogenically stored.
Abortion bans in states like Missouri, Kentucky and Arkansas do not distinguish between fertilization that happens in the womb and fertilization that happens in a laboratory.
Advocates therefore worry embryos used for IVF could be classified in some cases as fetuses and be subject to the laws’ legal requirements. Embryo storage and disposal, both common procedures in IVF, could become new legal battlegrounds with little to no precedent in states with abortion bans.
Sara Chambers, a woman living in Tennessee who is undergoing IVF, claimed her state representative said her provider would face a felony charge if Chambers discarded her unused embryos. The reason, according to a widely shared video posted by Chambers to the social media platform TikTok, was because doing so would violate Tennessee’s near-total abortion ban that went into effect in August.
The state defines life at conception, regardless if that happens in the womb or in an IVF clinic, the representative told Chambers in an email response to an inquiry she submitted to his office.
“Under current law, a physician who attempted to discard your unborn children would be violating the law,” Chambers said the email read.
Chambers’ video has drawn 1.3 million views since she posted it in September. Chambers did not return multiple requests from Healthcare Dive to share the email. Her state representative, Ryan Williams, did not respond to Healthcare Dive’s request for comment.
Barnes, the embryologist, said she already is seeing the strain of confusing personhood laws within the fertility industry.
“If for some reason, something happens in the lab and we damage an embryo and it doesn’t survive, we could potentially be held legally responsible for that,” Barnes said.
“I think there’s a big disconnect between the professionals that are in the field doing the work every day and the lawmakers that are putting these things into place,” Barnes added. “There’s a big disconnect there and a lack of communication and a lack of education.”
Still, officials like Tipton caution against overreacting. IVF remains legal in all states and infertility patients have “complete control” over making reproductive decisions, he said, at least until they get pregnant.
“I spent the first six months trying to convince people they should be worried about the Dobbs decision,” Tipton said. “And I spent the last couple of months kind of trying to calm everybody down.”
Depending on how personhood laws are enforced, patients also could face limited options for embryo storage. The uncertainty has caused some women to consider moving their frozen embryos to states where abortion protections remain in place.
David Stern, CEO of Boston IVF, a regional fertility practice, said that when Roe was overturned, his Boston clinic received 20 to 30 calls a day from patients outside their area — mainly from states that had abortion bans — asking for information about moving their embryos to Massachusetts.
“I think it’s unfortunate that, after 50-plus years of having this be American freedom for women to make these decisions, we’ve had this change,” Stern said.
Sue Johnston, a Resolve support group leader who has been active in the infertility community for decades, described patients frantically contacting her after the Supreme Court’s decision.
“Everyone was reaching out to me and saying, ‘What am I going to do?’” Johnston said. “‘With my miscarriage, am I going to be put in jail? Should I be moving my embryos to a different state?’”
Freezing and storing embryos indefinitely — to avoid potential repercussions for disposing of them — or moving embryos across state lines can be costly, though.
The cost of one IVF cycle is about $23,000 on average. Embryo freezing fees can cost as much as $15,000, plus hundreds of dollars more in storage and moving fees.
Michelle Streeter, an IVF patient in Virginia who consults and helps others undergoing fertility treatment, said that fees for genomic testing, lab work and medications can take costs even higher. So could other steps patients take as they weigh the impact of abortion laws.
“IVF is a big investment,” Streeter said. “You’re basically saying, ‘Here’s $20,000 dollars to gamble at growing your family.’”
A donated human embryo is seen through a microscope at the La Jolla IVF Clinic in California, on Feb. 28, 2007.
Sandy Huffaker via Getty Images
Common tests used by infertility patients to detect genetic abnormalities and avoid miscarriages also could be impacted by state abortion bans.
Providers are concerned that personhood laws will restrict certain embryonic testing, like preimplantation genetic testing, or PGT, which allows patients to choose embryos with the highest chance of implantation success.
Typically, PGT testing screens for genetic abnormalities. If abnormalities are discovered, patients can either donate the embryos for research or discard them. However, if those embryos were considered persons, discarding them could infringe on state abortion bans that define life at fertilization.
The problem is particularly vexing for IVF patients, who face higher risks of pregnancy complications.
“The embryos that are non-viable, that are unhealthy will lead to a miscarriage,” Stern said. “So by discarding those embryos and not implanting them, you’re saving the healthcare system [and] the woman a lot of grief.”
“Not every embryo that’s created is destined to be a child,” he added.
In effect, infertility patients may have to decide between risking potential penalties for discarding embryos, paying greater expenses to store them indefinitely or carrying fetuses that are potentially non-viable.
“You’ve got a pregnancy where there’s no prospect for a successful life outside of the womb,” Tipton said. “Or if they do live, it’s gonna be a very short, painful life. But under state law, they’re not allowed to terminate.”
Other state abortion bans criminalize abortion too early to conduct other tests — echocardiograms to detect heart defects and ultrasounds to determine birth defects — which are only done in the second trimester between 15 and 20 weeks. Some bans, including a 15-week national abortion ban proposed in September by Sen. Lindsey Graham, R-S.C., would prohibit the procedure before the tests could be conducted.
St. Pierre and her husband Denis in their living room in Georgia, on Oct. 2, 2022.
Photo: Amanda Greene for Industry Dive
Even before Roe’s end, infertility patients and providers faced challenges from legislation and anti-abortion campaigns.
“We have seen many opportunities at the community and the state level to either restrict access to IVF or regulate different facets of what goes on in an IVF clinic,” said Collura, who joined Resolve in 2008.
Most bills that Collura has seen would impact how embryos are handled, including their disposal. Collura also notes that some personhood bills would target life at conception and classify embryo disposals as homicides.
Proposed bills in South Carolina and Oklahoma give fertilized embryos personhood rights, for example. Another in Louisiana that passed the state legislature goes further, proposing to charge people who get an abortion with homicide. The bill met opposition from anti-abortion rights groups and has since stalled.
Other states that have introduced personhood bills in their legislatures include Iowa, Missouri, Nebraska and North Carolina.
Currently, most abortion bans specifically refer to terminating a fetus in utero. Yet vague language could muddy enforcement.
Chambers said she was told discarding her embryos would be illegal under Tennessee’s abortion ban because the law gave fertilized embryos personhood rights. However, the law’s language classifies abortion as termination of a “pregnancy of a woman known to be pregnant.”
Some anti-abortion groups have said they’re considering legislation that could impact IVF as well.
Texas Right to Life’s senior legislative associate Rebecca Parma told The Texas Tribune the group would like to expand protections for embryos but said the topic would not be an issue for the upcoming legislative session. The group did not respond to Healthcare Dive’s request for comment
Some anti-abortion groups, like the college- and high school-focused organization Students for Life, oppose fertility treatments outright, calling the procedure “damaging and destructive” on their website. Others, like the Catholic church and affiliated anti-abortion rights groups, have condemned IVF as they believe life begins at conception.
The result is that, for some infertility patients, IVF treatment has become an even more stressful process and, due to the potential consequences of the new laws, more risky as well.
“One of my dear friends, they have done a few rounds of IVF and they’ve put that on hold,” St. Pierre said. “They’re looking into adoption at this point.”
