The Supreme Court Overturns Right to Abortion, Raising Questions and Uncertainties for ART Patients and Providers
Jul 21, 2022
Author: Susan Crockin, with guest authors Katie Gottschalk, Executive Director and Francesca Nardi, Junior Associate, O’Neill Institute for National and Global Health Law, Georgetown University Law Center*
Origin: Legally Speaking July 2022
An explanation of the Dobbs decision, and its potential impactConsistent with the mission of this column since its inception to explain complex court rulings and statutory enactments and their potential impact on ART providers and patients, below is a summary of the U.S. Supreme Court’s ruling and various opinions in Dobbs v. Jackson Mississippi Women’s Health, and several of the legal and factual concerns it may raise for the ART community.
In the words of ASRM President Marcelle Cedars on the day the decision was released:
“This decision removes an essential civil liberty that Americans have relied upon for nearly 50 years, one that is well-grounded in the history and best traditions of our country.”Regarding its potential impact, there are currently more questions than answers, with speculation and opinions proliferating almost daily. ASRM has created multiple resources for its members, including updates, information, and advocacy opportunities, that are accessible at: https://www.asrm.org/dobbs-resources.
I. Understanding the Court’s decision in DobbsOn June 24th, the U.S. Supreme Court issued its decision in the case of Dobbs, State Health Officer of the Mississippi Department of Health, et al. v Jackson Women’s Health Organization et al. The Court chose to hear and rule on a “petition for certiorari;” (unlike lower courts, there is no right to appeal to the Supreme Court and each year the Court selects fewer than 100 cases from an average 7,000 petitions). A petition for certiorari is typically granted to answer questions of new law or to resolve conflicts between states or jurisdictions.
The earlier cases: Roe v Wade and Planned Parenthood of Southeastern PA v. Casey:In 1973 the US Supreme Court issued its ruling in Jane Roe, et al., v. Henry Wade (“Roe”) when a pregnant woman brought a class action challenging the constitutionality of Texas’ criminal abortion laws which prohibited procuring or attempting an abortion, except on medical advice for the purpose of saving the mother's life. The Supreme Court’s holding in Roe recognized that the decision to continue or end a pregnancy before fetal viability belongs to the individual, not the government, based on a specific guarantee of “liberty” in the Fourteenth Amendment of the U.S. Constitution, which protects individual privacy. This ruling also set out a trimester framework, leaving decisions about abortion during the first two trimesters to a woman and her physician.
Nearly 20 years later, the 1993 case of Planned Parenthood of Southeastern Pennsylvania, et al., v. Robert P. Casey, et al. (“Casey”) confirmed, but narrowed, the basic doctrine in Roe, holding that “principles of institutional integrity, and the rule of stare decisis require that Roe's essential holding be retained and reaffirmed as to […] a recognition of a woman's right to choose to have an abortion before fetal viability and to obtain it without undue interference from the State.” In that 5-4 decision, the Supreme Court upheld several state-imposed regulations prior to fetal viability, finding they did not create an “undue burden,” which it defined as a “substantial obstacle” to the right to abortion.
The case of Dobbs v. Jackson Women’s Health Organization:The Dobbs decision is the first time in its history that the Supreme Court has revoked a previously recognized constitutional right, and one of only a handful of cases in its history to set aside previously settled precedents. The case involved a constitutional challenge to Mississippi’s Gestational Age Act, which stated “[e]xcept in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform . . . or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.” Typically, courts address only the narrowest question before them, and as Chief Justice Roberts’ noted in his concurrence, the Mississippi law could have been upheld by overruling only the viability standard, without overruling Roe and Casey in their entirety as the majority chose to do. While only the majority’s ruling is the law, the components and various opinions offer important insights and potential future directions the court may be considering.
The majority opinion sets out the decision of the court and its essential and legally binding reasoning. Six Justices, Alito, Roberts, Kavanaugh, Barrett, Gorsuch and Thomas, found that the Constitution, properly understood, does not provide a right to obtain an abortion. This holding reversed both Roe and Casey and found that the “authority to regulate abortion is returned to the people and their elected representatives.” Chief Justice Roberts wrote a concurring opinion, and join only the majority’s decision or ruling, not its reasoning, as discussed below. Three justices dissented, writing a joint dissenting opinion.
The Majority Opinion:
Writing for the majority, Justice Alito stated that the Due Process Clause of the Constitution protects two categories of substantive rights — “those rights guaranteed by the first eight Amendments to the Constitution and those rights deemed fundamental that are not mentioned anywhere in the Constitution.” The majority’s analysis required that an unenumerated right, like the right to privacy upon which Roe and Casey were based, be a right “deeply rooted in this Nation’s history and tradition” before it can be recognized as a component of the “liberty” protected in the Due Process Clause.
The majority found that because it deemed abortion not “to be deeply rooted” in American history and tradition, it cannot be understood as an unenumerated constitutional right. The opinion concluded that a right to abortion could not be found in the right to privacy, and that states should be free to balance the interests of pregnant people against the interest in protecting “potential life.” Without a constitutionally recognized right to privacy or abortion, the Court ruled that the lowest standard or test for lawfulness, “rational basis” applied, so that as long as an abortion law meets a “rational basis,” states are free to enact restrictions. The Court had earlier in the term upheld a Texas law that restricted abortions after 6 weeks and allowed for civilian enforcement and rewards.
The ruling in Dobbs is particularly stunning for several reasons: under the doctrine of “stare decisis” (Latin for “to stand by things decided”), even when Justices disagree with prior decisions, they typically refrain from overturning them, as well as the Court’s reaching well beyond the question before it, and choosing for the first time to revoke a Constitutional right
The Concurring & Dissenting Opinions:
The Dobbs decision also included concurring and dissenting opinions. Concurring opinions are written by individual justices who broadly agree with the outcome or the “holding” of the case, but may either disagree with some of the logic or reasoning applied by their colleagues to arrive at the decision, or may want to highlight specific issues that were not addressed in the majority opinion. Concurring opinions are not legally binding, as they represent the perspectives of individual justices, rather than a majority of the Court, but can still play several important roles.
First, concurring opinions are still considered to be persuasive legal reasoning and may be cited in other cases that come before lower courts, or in future cases considered by the Supreme Court. Second, concurring opinions can provide insight into points of tension or disagreement between Justices who may have broadly agreed with an outcome but approached a case with different perspectives. Third, concurring opinions can provide lawyers and legal scholars with insight into the kinds of reasoning that may resonate with particular Justices, or future lines of argumentation that may be persuasive to the Court.
In Dobbs, three Justices wrote individual concurring opinions: Justice Kavanaugh, Chief Justice Roberts, and Justice Thomas. While Justices Kavanaugh and Thomas also joined the majority’s opinion, each also wrote a concurrence to highlight different lines of reasoning. Justice Thomas criticized the legal concept of substantive due process and suggested that a number of previous Supreme Court Judgements relying on substantive due process reasoning (including cases providing constitutional rights for people of the same sex to marry and have intimate relationships, and for married couples to use contraception) should be reconsidered. Justice Kavanagh focused much of his concurring opinion on an argument that the Court never had the authority to make a pronouncement on the issue of abortion in Roe and later cases, as the Constitution does not expressly mention abortion. He emphasized his belief that abortion policies should be (and should always have been) drafted and decided on by elected state legislators. He also noted that the constitutional right to travel would allow women living in states where abortion might be prohibited to travel to states without such a prohibition. Critics have pointed out that this constitutional right is also not enumerated or “deeply rooted” in the Constitution, as well as that it presumes women have the financial and other resources needed to pursue that option. As noted below, some states since Dobbs are looking to create laws that would restrict such travel and penalize individuals who might assist in such efforts.
Chief Justice Roberts concurred only in the judgement of the court, but not the majority’s reasoning. Instead, he urged restraint and offered as an alternative view that the Court could have overturned the viability standard in Roe and found the contested Mississippi law constitutional without disposing entirely of the right to abortion recognized by Roe and Casey.
Three Justices dissented: Justices Kagan, Sotomayor, and Breyer argued jointly that Roe and Casey were both correctly decided, settled law, and that these decisions represented an appropriate balance and compromise between the interests of the state in protecting potential life and the interest of individuals seeking to exercise their autonomy.
The dissent argued that the Constitution supported a right to privacy and procreation, and that the right to abortion was an important component of that right. It addressed a myriad of likely impacts on women and highlighted the uncertainties the majority’s ruling would create, including the assisted reproductive technologies as one example of an area that could be impacted by this ruling: “the Court may face questions about the application of abortion regulations to medical care most people view as quite different from abortion. What about the morning-after pill? IUDs? In vitro fertilization? And how about the use of dilation and evacuation or medication for miscarriage management?”
II. Post-Dobbs and reproductive rights: more questions than answersIn the wake of Roe v. Wade, several states passed anti-abortion laws that were “stayed,” meaning unenforceable until and unless Roe was overturned. These so-called “trigger laws” were drafted to automatically go into effect shortly after such a reversal, and as of publication time, thirteen laws have or will do so within a matter of weeks or less. The breadth, language and details of these laws vary and a state -by-state guide to these laws has been compiled by ASRM and can be found at: State Abortion Trigger Laws’ Potential Implications for Reproductive Medicine. As discussed below, for those that do not explicitly exempt IVF or IVF embryos, and/or that include language to the effect that “life begins at fertilization,” the potential impact on IVF and the ARTs may be problematic or concerning at best.
In addition to “trigger laws,” several states (including some of the same states) also had much older “zombie” laws that had been enacted decades before Roe, which were also unenforceable and which, depending on the language of the laws and political party in power in a state, may also be springing into enforceable existence.
Post-Dobbs, abortion access, including travel to access abortions and potential liability for providers and others who assist them, will turn on a dizzying patchwork of older and newly enacted laws in “red” and “blue” states. As this column went to press, lawmakers in Texas were drafting a new law to prevent assisting Texas women from traveling out of state for an abortion and notified a national law firm’s Texas office that its attorneys would be subject to disbarment for providing any such assistance. [https://www.nytimes.com/2022/07/11/us/politics/the-right-to-travel-in-a-post-roe-world.html?referringSource=articleShare]
III. How might the Dobbs decision Impact the practice of ART for providers and patients?While the primary impact on Dobbs will certainly fall on women and girls who seek abortions and live in states where they will be unable to obtain them, and do not have the financial means or resources to travel to other states to obtain one, legitimate and significant concerns are being raised about the potential impact on the ARTs for providers and patients. While there are more questions than answers at this point, the following are some of the significant legal and practice-related concerns being discussed:
Embryos (“fertilized eggs”, “pre-implantation IVF embryos”, or “pre-embryos”):While the majority opinion does not mention IVF (the dissent explicitly raises concerns over IVF at p. 36 of its dissent), by choosing to go beyond upholding the Mississippi abortion law’s 15 week ban which was before it, and overruling both Roe and Casey, the Court explicitly stated that “potential life” and “unborn human life” are unique and uniquely deserving of protection. They ruled that the extent of this protection means that the interests of pregnant women to control their pregnancies are not constitutionally protected, while the interests in protecting potential life are. In short, a state law may prohibit or restrict abortions at any stage, as long as it meets a “rational basis” test.
The potential for extending the Court’s analysis to IVF embryos could be relatively straightforward for two reasons:Embryos also represent “potential life,” and there are no bodily autonomy interests of a pregnant woman to balance against those that may be found for IVF embryos in a lab. In many ways, the court’s embrace of protecting “potential life” may not only be quite readily extended to embryos, but it may be easier than in the context of pregnancy.
Potential impact of individual state laws on embryos:There is no single answer as it depends on what law a state passes (and survives any legal challenges) and how that state intends to enforce it. A state could explicitly exempt IVF from any anti-abortion law, or the language of a state’s enacted law(s) could be interpreted not to apply to IVF or embryos, but only to termination of pregnancies. On the other hand, statutory language such as “life begins at fertilization” may directly implicate IVF pre-implantation embryos or be interpreted to do so. “Personhood laws,” if enacted, will also have a potentially major impact on these issues.
Assuming a state law does not unequivocally exempt IVF or embryos, the potential impact on providers and patients could be multi-faceted. Storage and disposition choices could be questioned or limited, discard could be disallowed, and even “compassionate transfers” -- transferring embryos to the uterus during a non-fertile time without an expectation or goal of achieving a pregnancy-- could be considered to violate a law that is deemed to protect embryos.
A couple’s agreement to discard unused embryos may become subject to scrutiny or limited by state laws or interpretations of them by prosecutors (or private citizens who may be allowed to pursue legal claims, such as under Texas’s SB 8 with respect to abortion). Ironically, courts faced with divorcing couple’s disputes over whether one can use the embryos for procreation, have almost all refused to allow use over a former spouse’s concurrent objection. In one seminal case, AZ v. BZ (MA 2000, LS ___), the court ruled that “forced procreation” is not judicially enforceable. An anti-abortion law deemed to apply to embryos could accomplish exactly that result.
If neither member of a couple wanted to use the embryos, another concern that has been raised is whether they could be required to donate them for procreation rather than discard them. Louisiana’s longstanding law could be a model: that law has long recognized embryos as “juridical persons” subject to “adoptive implantation,” and makes the IVF doctor the temporary guardian until a heterosexual, married recipient couple is identified. Reportedly, Louisiana patients have for years routinely shipped their frozen embryos to other states for continued storage and potential future use. A more recent law passed in Arizona might be another model: after an oncofertility survivor was denied use of embryos that she and her former partner created based on their IVF agreement which clearly required their mutual consent, the Arizona legislature enacted a statute that awards embryos to the former partner (assuming they are a genetic contributor) who wants to bring the embryos to life, regardless of any prior agreement or consent signed to the contrary. See AZ. 25-318.03, enacted following Terrell v. Torres (AZ 2020, LS, Feb.2020).
If embryos are deemed to be persons, through so-called “personhood laws” or otherwise, errors or mishaps in handling embryos, whether by physicians, lab personnel, or through tank failures may subject professionals and programs to greater and different types of liability. Until now, courts have fairly reliably rejected claims for “wrongful death” of destroyed embryos following tank failures (see for example, Pennimen v. Univ. Hosps. Health System (OH 2019, LS___; and Miller v. Am. Infertility Group of IL (IL 2005, LS ___). That could change dramatically if states included embryos in any anti-abortion laws they enact.
Freezing eggs and sperm instead of embryos to protect patient autonomy?It will take some time before there will be clarity in any given state’s enacted legislation, as trigger laws are triggered, zombie laws are resurrected, and new laws are drafted, challenged in court, and then either upheld, revised, or stricken. One measure IVF programs may want to strongly consider, already standard practice in many programs, is freezing eggs and sperm separately for as many patients as is feasible, notwithstanding their marital status or other circumstances. Even before Dobbs, freezing eggs was the preferred method of fertility preservation for a myriad of practices, as it preserved women’s autonomy vis-à-vis their partners. Although there are counterarguments, including additional expenses that may be involved and not providing the option of doing PGT, freezing gametes can help protect both men and women’s broader ability to control their reproductive options and autonomy in the future.
PGT and ESCR:IVF and PGT may become more prevalent if patients have concerns of genetic anomalies and fear being unable to abort in such an event. PGT may raise two separate types of legal concerns post-Dobbs. Arguments that PGT itself may potentially harm embryos can be countered by available scientific data that has clearly demonstrated the safety of current trophectoderm testing techniques. The second legal concern, however, may be what should be done with affected embryos, and by whom, including whether all such embryos must be implanted (with open questions as to who might be recipients if the intended parents do not want to use them) or at a minimum stored indefinitely for that potential purpose (with open questions as to cost, responsibility, or liability in the event of future loss).
If embryos are deemed protected, it is also difficult to see how embryonic stem cell research would not be impacted and potentially limited by state law.
Moving stored embryos and future patient care?Whether or not there is reason to move stored cryopreserved embryos from a “red” state to a “blue” state is also a topic of concern and discussion. At this point, there has been no state that has explicitly enacted a law (other than Louisiana’s and Arizona’s prior enacted laws discussed above) addressing or limiting IVF embryo storage and disposition. Many patients have been making such inquiries, however, and IVF clinics and storage facilities should be prepared to respond to those requests, as well as consider the possibility that at least some of those patients might want to undergo subsequent IVF transfer cycles out of state as well.
Impact on 3rd Party ART?
Same-sex couples are already raising alarms over whether their marriages and families may be at risk in a future court decision, something Justice Thomas alluded to in his concurrence. While many legal professionals, including this author, have long recommended a post-birth adoption for most same-sex couples regardless of marital status as the most legally protective protocol to ensure their parent-child relationship across any states because it is entitled to “full, faith and credit,” there have also been those who rejected that step as they felt it was unnecessary, added undue expense to, and/or was less respectful of same-sex families. There has been a marked uptick in interest and support for these types of adoptions to pro-actively protect these families since the Dobbs decision.
Beyond the concerns of same-sex parents noted above, the major impact on 3rd party ART will likely be felt on gestational carrier arrangements and all forms of surrogacy. Provisions addressing pregnancy management, including pre-natal testing, selective reduction and termination, are typically included in surrogacy agreements along with the critical caveat that a woman has constitutionally recognized and protected rights of bodily autonomy to control her own body and pregnancy, often with cites to Roe. Concerns for health care providers have already been raised, including counseling potential gestational carriers and intended parents around pregnancy decision-making
Carrying a multiple pregnancy, fortunately already curtailed by eSET in most instances, could also create safety issues for pregnant women and potential liability for physicians if a practice is deemed to have created undue risks to the fetuses by implanting what would be found to be an excessive number of embryos.
Going forward, much will depend on which state a gestational carrier or intended parents each reside in and under what law they draft their contract. Lawyers involved in these arrangements will want to scrutinize both the choice of law decisions for their contracts, and any potential conflicts of law issues should there be a future dispute amongst the parties.
Language matters:Lawyers have long recognized that language matters and can be outcome determinative. Language can help or hinder our understanding of the ARTs and protect or harm those who use them. Finding that a man is a sperm donor or an intended father, a woman an egg donor, a gestational surrogate, or an intended mother, or deeming an embryo a fertilized egg or pre-implantation IVF embryo and not an “unborn human being” can all lead to opposite legal conclusions.
As states look at drafting statutes, helping shape the public’s -- and hopefully at least some legislatures’ and courts’-- understanding of various ART technologies, practices, and terminology will be critical. Among the challenges we can expect are: distinguishing fertilization from implantation and embryo from fetus, as well as retiring the outdated and imprecise term “conception;” explaining the efficacy and safety of PGT and the reality that many affected embryos are not compatible with life; as well as explaining that both “Plan B” and IUDs are classified by the FDA as contraceptives, not abortifacients that prevent not disrupt pregnancies; and many others. Clearly the challenges ahead are far greater than linguistic but getting the facts straight and the terminology publicly understood can help meet these challenges.
Conclusion:It is too early to know the myriad of potential impacts of the Supreme Court’s decision in Dobbs on ART providers and patients. Without a federally protected constitutional right to privacy for a woman’s reproductive choices, states will be free to create laws that protect or deny women (and to some extent men) reproductive choices by simply meeting a “rational basis” test, the lowest test for upholding a law as constitutional. A national abortion ban would be even more concerning.
ART professionals and patients will want to be both vigilant and vocal in their defense of reproductive rights for all, especially those that impact patients’ ability to create families. By helping shape public awareness of the impact of both Dobbs and the many state laws that will follow and joining forces with other professional organizations to oppose anti-choice restrictive laws, ASRM has, and will continue to, play a critical role, both leading and supporting efforts to protect reproductive rights in the challenging times ahead.
* The O’Neill Institute for National and Global Health Law was established in 2007 through the generous philanthropy of Linda and Timothy O’Neill to response to the need for innovative solutions to the most pressing global health concerns. In bringing together experts from both the public health and legal fields, the O’Neill Institute reflects the importance of public and private law in health policy analysis. Housed at Georgetown University Law Center in Washington, D.C., the O’Neill Institute believes that the law is a fundamental tool for solving critical health problems.