States' Abortion Laws: Potential Implications for Reproductive Medicine

Introduction

These reports are from the ASRM Center for Policy and Leadership (CPL), a non-partisan think tank focused on the delivery of fact-driven, science-based information to inform decision making of relevance to the field and patients of reproductive medicine.

The U.S. Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization (597 U.S. __, 2022), overturned the nearly 50-year precedent set by Roe v. Wade (410 U.S. 113, 1973), which had recognized a constitutional right to abortion. The Dobbs decision has sparked a litany of changes in state laws across the nation, and more are expected. The CPL’s initial report focused on thirteen states where “trigger” laws were set to take effect and ban or severely restrict abortion care if Roe v. Wade was overturned.

Since publication of our initial report, developed with the generous pro bono support of Hogan Lovells, LLP, the CPL has monitored a spate of abortion restriction bills introduced across the nation. To fully grasp the potential implications of these laws for the field of reproductive medicine and patients seeking care and treatment for diseases including infertility, it is important to understand the current legal landscape. This report reflects that landscape in several states as of October 1, 2022. As state policymakers continue to propose statutory and regulatory reforms relative to abortion, and courts issue rulings to interpret various state laws and constitutions, readers are strongly advised to cross-reference the information in this report against any pending or newly enacted reforms.

While the overturn of Roe v. Wade does not necessarily restrict access to assisted reproductive technology (ART) procedures, including in vitro fertilization (IVF), the details of state law are critical to understand. While most of the abortion laws identified below are applicable in the context of a pregnancy, many of the state laws also include definitions stating that “personhood” begins at fertilization. Overly broad statutory language and definitions could, intentionally or not, implicate and even ban IVF and certain other ART procedures. The Dobbs decision and related state actions in its wake have the potential to severely limit the ability to provide high-quality, patient-centered maternal health care.

What’s in This Report

This second report provides background and limited analysis with a focus on the potential impact on reproductive medicine, and ART procedures, including IVF.

Herein, you will find an overview for each state designed to answer:

• Current state laws regulating abortion;
• What these law say, if anything, about reproductive medicine;
• Key definitions (e.g., “embryo”, “unborn child”, and “fertilization”); and
• Where you can find the provisions of law in state scode.

Notably, the impact of these laws varies state-by-state and often hinge on how terms like, “fertilization” and “unborn child” are defined and used. For example, in some states, the law defines life as beginning at any point after fertilization. This has potential implications for those practicing IVF.

What’s Not in This Report

This analysis is intended to address the impact of current state law on procedures performed prior to embryo transfer, including performing an IVF procedure and pre-implantation genetic testing. It does not attempt to address the impact of abortion law on potential pregnancy-related complications. IVF may put patients at increased risk for ectopic and heterotopic pregnancy, and state abortion laws may have consequences on the management of these and other pregnancy complications that are not addressed in this analysis.

Importantly, in addition to explicit abortion bans, “fetal personhood” legislation - which confer fetuses and embryos the same legal standing as a human being outside the womb - may become more common in the post-Roe world, exposing routine ART procedures such as IVF, preimplantation genetic testing, and the donation for research or discarding of unused embryos to legal challenge, and exposing ART providers who practice them to potential liability.

Disclaimers

Prepared by attorneys at the firm of Hogan Lovells, LLP, the following summaries are intended to provide an overview of state laws, which are rapidly evolving, and their potential impact on reproductive medicine procedures performed prior to embryo transfer, including IVF.

The information provided in this report does not, and is not intended to, constitute legal advice. All information and content herein are intended for general informational purposes only. This information is accurate as of publication date, with laws subject to change, revision and interpretation by the legislature, the courts, and state agencies at any point in time. Consult a local attorney for specific advice and counsel.

The statutory information in this report is current through October 1, 2022.

About the ASRM Center for Policy & Leadership

The ASRM Center for Policy and Leadership (CPL), established in 2020, builds on ASRM’s longstanding role as a leading policy voice on Capitol Hill and in state capitals. The CPL is a non-partisan think-tank with a goal to advance reproductive medicine worldwide, through thoughtful investigation of administrative and legislative challenges facing our field, and to develop analyses to overcome these challenges.

Questions regarding this report and the CPL may be directed to Rebecca O’Connor, J.D., Director, ASRM Center for Policy and Leadership. cpl@asrm.org. 

Acknowledgement

The CPL thanks the firm of Hogan Lovells, LLP, for its support in the research and analysis of these laws.  



 

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