The Potential Impact of Dobbs v. Jackson, Reproductive Services, and Medical Tourism
By Elizabeth Ziemba[i], JD, MPH, President of Medical Tourism Training, Inc.
What impact, if any, will the recent Supreme Court case, Dobbs v. Jackson Women’s Health Organization (Dobbs), have on IVF services in the United States?
Will the changes occurring in the country create opportunities for reproductive health service providers outside the US? Here is what is clear right now.
About Dobbs v. Jackson Women’s Health Organization
The recent US Supreme Court decision in the case of Dobbs v. Jackson overturned the decades long precedent established in 1973 case of Roe v. Wade that had granted women the fundamental Constitutional right to choose whether to have abortions without excessive government restriction. The result of the Dobbs case is that abortion is no longer a constitutionally protected right. Each one of the fifty states plus the District of Columbia is now in control of defining when women may access abortions and other reproductive services. How each state legislates this issue will impact the services available to women residing within that state or traveling to another state.[ii]
The immediate impact of this court decision is uncertainty and confusion regarding many aspects of pregnancy and reproductive health services not only for women but also for the “providers, pharmacies, practitioners, laboratories, genetic counselors, ambulatory surgery centers, storage facilities, transportation companies”[iii] and other related industries. Examples will follow shortly.
In the absence of clear, comprehensive, and well-drafted Federal legislation designed to address numerous legal issues and questions, each state will enact new laws to restrict, protect, or expand access to reproductive care services. Numerous legal challenges will result and take many years, if not decades, to resolve. The impact and uncertainty resulting from Dobbs is substantial.
The current situation in the fifty states – Massive confusion!
All fifty states plus the District of Columbia have laws governing access to abortion.[iv] Why is this important to reproductive health service providers? Here is why.
Assisted reproductive technologies (ART) including IVF that bring together eggs and sperm outside the body to create an embryo have an uncertain legal status as to whether certain laws apply to the procedures or not.[v] Most state laws that regulate access to abortions often do not distinguish between conception that takes place within the womb or in the laboratory. If states draft or revise laws to define conception that takes place both within the womb and in the laboratory or if a court case rules that conception as intended by law includes conception in the laboratory, the impact would be extraordinary. ART embryos would be considered “conception” impacting their creation, storage, and destruction.
Fertility clinics and cryobanks are already being contacted by clients asking if the embryos should be transferred to a state where abortion is legal or what should be done with embryos that are no longer needed? Can they be discarded or does that constitute a criminal offence? What happens if stored embryos are accidentally or intentionally thawed? Could the doctor or storage organization face criminal prosecution? The answers to these and many more questions are unknown at this time. Women and service providers are facing uncertainty and, if they “guess” wrong, may ultimately face criminal charges.[vi]
The State of Utah’s criminal law defines abortion as the “intentional killing…of a live unborn child through a medical procedure.”[vii] Under the existing law, a doctor could be charged with a felony by thawing and discarding embryos.[viii] Kentucky prohibits “public medical facilities” from intentionally destroying embryos as part of IVF.[ix]
These and other existing laws make destroying embryos a criminal offence, exposing doctors and other healthcare professionals potentially liable to criminal prosecution. Given the current political climate in the United States, it is reasonable to assume that other states will enact similar laws.
While the uncertainty of the current legal climate in the US may not make IVF clinics and other reproductive health services targets of criminal actions, anti-abortion activists and the organizations that support them will be actively looking for test cases to bring to court. No doctor, clinic, or individual wants to endure the public pressure, disruption, emotional upset, and financial costs associated with being a test case.
Factors Influencing Decisions about Reproductive Services
People expect a quick vaccine or medicine to prevent or treat COVID-19. After a few months of lockdown, people are impatient to “return to normal” as the virus continues to spread around the globe. The re-imposition of lockdowns and other restrictions will not be welcomed, and further lack of compliance with restrictions may result.
The current legal climate impacting women and influencing their decisions about accessing reproductive services can only be described as chaotic following the Dobbs decision. It is essential that women know what is available now in the state where they reside and the potential for changes in the law while undergoing treatment in that state. It may be legal to freeze embryos now but what if the law changes?
Of course, state legislatures may pass laws that specifically exempt IVF and other reproductive services from being included in the ban or regulation of abortion. That could be the best possible outcome.[x] Federal legislation could achieve the same goal.
Legislation is often flawed and may continue to contain vague language that can have unintended consequences. Or some aspects of IVF practices such as testing for genetic abnormalities may be included or omitted from legislation from state to state.
Finding safety and certainly within one state or another may be short lived as legal challenges will result. The wheels of justice turn very slowly.
Will Women Choose Medical Tourism?
Women around the world choose to travel for healthcare services including IVF and reproductive care for a variety of reasons – privacy, cost, availability, quality, and more. Will the Dobbs decision have the consequence of encouraging or forcing women to seek fertility services outside the United States?
Time will tell but IVF providers in the Caribbean, Mexico, Central America, Canada, and other destinations may well consider US women as prospective clients – more so than at any other time. The risk of accessing treatment in the US has just increased. The Dobbs decision raises legal issues for women that will take time to resolve in the court system. These decisions, when made, will impact their decisions about where, when, and how to access reproductive health services.
Service providers are being affected too. Providers will assess their risk and change their policies, pricing, and waivers of liability. Access to IVF and other reproductive health services will change and perhaps the options will become limited.
Seeking procedures in well-established destinations with clear legal rights and responsibilities, high quality of care, and affordable prices may be appealing to more and more US women.
About the Author:
Ms. Elizabeth Ziemba, JD, MPH, is a pioneer in the fields of wellness, health, and medical travel having established Medical Tourism Training in 2009 as the first training company dedicated to the specific needs of the sector. With a history of success in consulting projects around the world, Ms. Ziemba works with governments, healthcare providers, associations, health clusters, and hospitality services conducting market research, marketing, organizational and business development, and other services to assist clients to achieve their goals. eziemba@medicaltourismtraining.com or call +1 857 366 1315.
[1]The legal interpretations and opinions are not legal advice and should not be considered as such.
[2] Currently discussion is taking place that will prohibit women from traveling from one state in which a service is not offered to a state where the service is offered. This scenario is highly likely to take place in the near future with a legal challenge being brought to the US Supreme Court as a violation of interstate commerce, conflicts of laws, or other legal theories.
[3] “Unanswered Questions after Dobbs Part III: Fertility,” ReedSmith, Client Update, June 23, 2022.
[4] This website offers an analysis, state by state by DC, of laws making abortion legal or illegal as well as the changes that will occur because of Dobbs. https://www.politico.com/news/2022/06/24/abortion-laws-by-state-roe-v-wade-00037695
[5] Heidt-Forsythe, E. et als. Roe is gone. How will state abortion restrictions affect IVF and more?. Washington Post. June 25, 2022.
[6] Hoffman, J. Infertility Patients and Doctors Fear Abortion Bans Could Restrict IVF. New York Times, July 5, 2022.
[7] Cohen, I. Glenn et als. What the Supreme Court’s abortion reversal means for in vitro fertilization. The Boston Globe. June 30, 2022.
[8] Ibid.
[9] Ibid
[10] Heidt-Forsythe, H. et als. Roe is Gone.