The Potential Impact of States’ Abortion Trigger Laws on Reproductive Medicine

Introduction

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 of Roe v. Wade (410 U.S. 113, 1973), which conferred a Constitutional right to abortion, and has sparked a litany of changes in state laws across the nation. In thirteen states, so-called “trigger” laws have and are set to take effect which ban or severely restrict abortion care.

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, as overly broad statutory language and definitions could, intentionally or not, implicate and even ban such procedures. This 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.

The ASRM Center for Policy and Leadership (CPL), with the pro bono support of Hogan Lovells, LLP, prepared this report to provide professionals, patients, and other members of the public with this high-level overview of states’ abortion “trigger” laws and their impact on reproductive medicine, and assisted reproductive technology (ART) procedures, including in vitro fertilization (IVF).

What’s in This Report

This report provides background and limited analysis, focused on the potential impact on reproductive medicine, regarding thirteen states’ “trigger laws” which effectively or directly ban abortion now that Roe has been overturned.

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

• What the trigger law does;
• What the law says, if anything, about reproductive medicine;
• Key definitions (e.g., “embryo”, “fertilization”); and
• Where you can find the provisions of law in state code.

Notably, the impact of these laws will vary state-by-state and often hinge on things such as 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 states’ trigger laws on procedures performed prior to embryo transfer, including performing an IVF procedure and pre-implantation genetic testing. It does not refer to the impact of abortion law on potential pregnancy-related complications. IVF may put patients at increased risk for ectopic and heterotopic pregnancy, and trigger laws may have consequences on the management of these and other pregnancy complications that are not addressed in this analysis.

This report is the first in a series to come from the CPL, as we continue to monitor state activity. For example, 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 discarding of unused embryos to legal challenge and 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 trigger laws and their potential impact on reproductive medicine, 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 the date of publication. Periodic updates will be made, so please check back for the latest version, as date stamped.

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.