Wednesday, June 8, 2022

What might the assisted reproduction gray market look like, post Roe?

 Yesterday I blogged about what might happen to the availability of abortion if it's constitutional protection is reversed so that individual states can ban it.  Today let's consider other medical issues involving conception, such as IVF, which involves creating embryos in Petri dishes. It may be at risk, state by state, if we find that embryos have legal rights.  But (like abortion), IVF is likely to remain legal in some states even if banned in others.

Here's an article in JAMA:

What Overturning Roe v Wade May Mean for Assisted Reproductive Technologies in the US, by I. Glenn Cohen, JD; Judith Daar, JD; Eli Y. Adashi, MD, MS, JAMA. Published online June 6, 2022. doi:10.1001/jama.2022.10163

"Across the US there exists a wide range of state laws (statutory and common law) regarding assisted reproductive technologies. For example, California courts essentially enforce agreements involving gestational surrogacy, whereas Nebraska treats such agreements as void and unenforceable and Michigan treats the creation of a commercial surrogacy agreement as a felony.


"The leaked opinion in the Dobbs case explicitly states that “to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right” and that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion” after sentences that reference the Supreme Court’s pre-Roe constitutional cases regarding a constitutional right to use contraception.1 But on its face, the key piece of the reasoning of the Dobbs decision, that a “right to abortion is not deeply rooted in the Nation’s history and traditions,”1 would seem to apply with even more force to IVF, which was first used in the US in 1981, after Roe v Wade—and certainly was not present at the time of the framing of the Fourteenth Amendment (1868).


"A future Supreme Court opinion might easily group embryo destruction as more like abortion because of its involvement with the destruction of “potential life.” If anything, it is easier to see how the Supreme Court might reach such a decision because there is not a countervailing claim to a woman’s gestational bodily autonomy raised by, for example, a prohibition on IVF."


States that make laws against IVF may have difficulty enforcing them if other U.S. states continue to have legal IVF.  Laws can of course claim to apply to their citizens wherever they are, but a woman who returns home, pregnant, from a jurisdiction with legal IVF will be very hard to distinguish from other pregnant women.  So it will be easier to shut down fertility clinics (or to ban the sale of contraceptives) within a state's boundaries than to prevent state residents who can afford it from going to a neighboring state to help them with family planning.  

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