- Experts told Insider that if Roe v. Wade is overturned, other private reproductive health procedures could be at risk.
- Lawyers and reproductive health doctors said IVF, contraception, and miscarriage management could be under fire next.
- “Removing our protection to the right to abortion will just open the floodgates for people to be criminalized for their behavior during pregnancy,” one expert said.
If the Supreme Court hands down a ruling in Dobbs v. Jackson Women’s Health Organization that overturns Roe v. Wade, private reproductive health decisions other than abortion could be at risk, medical and legal experts told Insider.
A leaked draft opinion — penned by conservative Supreme Court Justice Samuel Alito — shows the Supreme Court is poised to overturn the decision set in the landmark 1973 Roe v. Wade case that granted women the federal right to an abortion.
Alito says in the draft that abortion is not “deeply rooted in this Nation’s history and tradition.” His opinion refutes a precedent set in Griswold v. Connecticut — the same precedent used to help decide Roe — that there is an implicit right to privacy in the Bill of Rights, and the choice to have an abortion falls within those rights.
While Alito says in the draft opinion that other privacy decisions like same-sex and interracial marriage would not be affected by overturning the Roe v. Wade decision, legal experts and reproductive health doctors told Insider that private reproductive health decisions like in vitro fertilization (IVF) and contraception could still be affected.
“It really looks at the fact that there wasn’t — in his opinion — a history of abortion and therefore that is Roe is wrongly decided,” Seema Mohapatra, a law professor at the Southern Methodist University Dedman School of Law, told Insider of Alito’s draft opinion. “But there are a lot of rights that there aren’t a history or tradition because women and people of color couldn’t vote.”
Doctors say IVF could be at risk if fetuses are given rights at the point of fertilization
As the US awaits a decision from the Supreme Court on Roe v. Wade, “personhood” bills have started to arise in some states.
Mohapatra told Insider that some lawmakers are carving out exceptions for IVF and assisted reproduction in their personhood bills, even though it is not consistent with their belief that life begins at conception. She said this makes the line on what would be legal blurry.
When undergoing IVF, fertilization happens outside of the body, and doctors often create multiple embryos before choosing some to implant into a woman’s body. Those not implanted are usually discarded.
“We shouldn’t be using a philosophical definition as a legal definition,” Dr. Stephanie Gustin, a reproductive, endocrinology, and infertility specialist based in Omaha, Nebraska, told Insider of bills defining personhood at the time of fertilization.
Gustin said, citing data from the American Society for Reproductive Medicine, that less than 20% of fertilized embryos will produce a healthy child and that while fertilization happens a lot, that doesn’t equal a viable pregnancy 100% of the time.
She said, citing further data from multiple studies, that a healthy woman who can produce five to six healthy embryos may only have four to five that are genetically normal, and then only 50-70% of those “normal” embryos will result in a live birth.
Natalie Crawford, MD Fertility Physician at Fora Fertility in Austin, Texas, told Insider that because the Roe decision predates IVF, overturning it puts technology at risk.
“We are specifically worried that ‘personhood’ bills — those that define life at fertilization, may make aspects of reproductive technology illegal — such as fertilizing eggs, growing embryos in the lab, genetically testing embryos, freezing embryos, thawing embryos, and discarding embryos,” she said. “This will place restrictions on IVF either making it illegal or less effective, less safe, and less accessible.”
Miscarriage medications and birth control could also be restricted, experts said
Medications used to treat miscarriages are also at risk of being restricted, Heather Shumaker, Director of State Abortion Access at the National Women’s Law Center, said, because the most common drugs prescribed to a woman who has either miscarried or had an
are the same ones used to treat women who have just had an abortion.
NPR recently reported that in Texas, it is already increasingly difficult to get methotrexate and misoprostol at the pharmacy. The drugs, which are each described as an “abortion-inducing drug” in a law that went into effect last year, are recommended by the American College of Obstetricians and Gynecologists for use after a miscarriage.
“I don’t know that any anti-abortion lawmaker is going to come out and say ‘We’re going after miscarriage management next,’ because that would be wildly unpopular, but we could see these policies having implications on miscarriage management,” Shumaker said.
Overturning Roe could also threaten access to contraception, or at least certain types, Mohapatra said.
Mohapatra told Insider there could be future restrictions on Plan B and IUDs, which have been mistakenly labeled as abortifacients, or medications that induce abortion.
But Mohapatra said these
methods aren’t abortifacients, as they do not terminate pregnancies, they only prevent them.
Ultimately, Shumaker said, overturning Roe v. Wade “will put pregnant people under fire.”
“The way that removing our protection to the right to abortion will just open the floodgates for people to be criminalized for their behavior during pregnancy,” she said. “Whether it’s getting treatment for an ectopic pregnancy, whether it’s using a substance, a miscarriage — it opens the door for people’s pregnancy outcomes to be scrutinized.”