May 10, 2022 - Health
Axios Explains: Abortion

Overturning Roe creates a tempest for reproductive health

Illustration of a row of standing gavels set up and toppling like dominoes

Illustration: Annelise Capossela/Axios

If the U.S. Supreme Court overturns Roe v. Wade, it could begin a ripple effect that subsumes many other facets of reproductive health care — a reflection, in part, of decades' worth of medical advances that make the subject much more complicated than it was 50 years ago.

Why it matters: Striking down the federal right to abortion could impact how people prevent becoming pregnant, how families grow and how miscarriages are managed.

Where it stands: If a leaked draft of the SCOTUS opinion to overturn abortion rights is finalized, states would decide whether abortion is legal, under what terms and even how abortion is defined.

  • More than a dozen states already have laws in place that would automatically ban abortions if Roe is overturned.
  • The language of these laws varies. But legal experts say they and other state laws create a hornet's nest of legal ambiguities.
  • "Banning abortion definitely has implications for other aspects of care, without a doubt. And it is everything from how you deal with miscarriages all the way to thinking about which methods of contraception are going to be acceptable," said Kaiser Family Foundation's Alina Salganicoff. "It's very complicated, and I think we're going to see a lot of laws as well as legal challenges to laws that we haven't seen before."

Between the lines: One immediate issue is the way state laws define "unborn human beings," and the way some definitions potentially make bans apply to embryos created through the IVF process and some forms of birth control.

  • Some states' trigger laws define life as beginning at fertilization, or when a sperm penetrates an egg.
  • Louisiana's trigger law, for example, specifies that "'unborn human being' means an individual living member of the species, homo sapiens, throughout the entire embryonic and fetal stages of the unborn child from fertilization to full gestation and childbirth."

The IVF process works by fertilizing eggs with sperm in a lab and then transferring that fertilized egg — or embryo — to a uterus. But it's common for surplus embryos to be created that wind up going unused.

  • Some state laws may confer legal protections to those unused embryos, experts say.
  • "There are going to be a lot of ancillary effects, and this could be quite catastrophic on the fertility industry," said Traci Keen, CEO of Mate Fertility. If a fertilized egg is declared life by law, then discarding that embryo "would be considered an abortion."
  • Some forms of birth control may also prevent a fertilized egg from implanting in a uterus and are considered forms of abortion by some conservatives.

The other side: Some other state laws contain language that experts say make them less likely to apply to IVF or contraception.

  • In Missouri's trigger law, for example, abortion is defined as terminating "the life of an embryo or fetus in his or her mother's womb," which may exclude embryos outside of the womb.
  • Utah defines abortion as the termination of a pregnancy "after implantation of a fertilized ovum," suggesting protection only applies to embryos that have already implanted into the uterus.
  • Arkansas, Kentucky and Louisiana laws specify that their abortion bans don't apply to contraception that's administered before a pregnancy can be detected through medical testing.

The ruling could also have unintended consequences for managing miscarriages, which often uses the same methods as abortions.

  • "There's concerns about whether clinicians who are going to be working in states that will effectively ban abortion are going to be concerned about using a medication that is considered an abortifacient to manage the miscarriage," Salganicoff said.
  • State laws factor a provider's intent. That means providers may have to take additional steps to show they gave care after a fetus was already nonviable, to distinguish from providing the same care with the aim of terminating a pregnancy.
  • "I suspect in states where abortion is banned medical providers will develop appropriate techniques to determine compliance with the law. So I think it'll change the standard of care," said Naomi Cahn, co-director of UVA Law's Family Law Center. "I would imagine that they would want to be very careful in documenting this."

Experts say women may also be forced to carry pregnancies in which the baby won't survive after birth.

  • State laws generally allow abortions when the life of the mother is at risk, and some contain clauses saying that abortion is permissible to remove a "dead fetus" or a "dead, unborn child." That generally means the same procedure used for an abortion can be used for the removal of a dead fetus in the event of miscarriage or stillbirth.
  • But some women whose lives aren't at imminent risk could be imperiled as the pregnancy continues. Abortion may not be an option for them, nor for some women with nonviable pregnancies.
  • Texas' six-week abortion ban makes no exceptions for these scenarios, the New York Times reported last year.

What we're watching: Courts will likely have to interpret the scope of existing state laws. But in the meantime, states may move to write new policies.

  • Louisiana lawmakers recently advanced a bill that would classify abortion as homicide and allow women who end a pregnancy to face criminal charges. Experts say the legislation would also restrict IVF and emergency contraception, the Washington Post reports.
  • Other states have pushed "personhood" legislation that would give fetuses full protection under the law as early as fertilization, per KFF. But an abortion ban passed in Alabama in 2019 excluded eggs fertilized in the IVF process, a route other states may take going forward.
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