UNINTENDED CONSEQUENCES? Oklahoma Gov. Kevin Stitt will sign the nation’s strictest abortion bill into law any day now, barring nearly all abortions from the moment of “fertilization.” That word choice has led not only to blaring alarms about what this means for Oklahomans’ access to abortion, but also to additional warnings from abortion rights advocates and some Democrats that such legislation could also affect fertility treatments, like in vitro fertilization. Depending on the language and interpretation, a state law could curtail access to fertility treatments, and in some cases, make the practice of freezing or discarding unused embryos in IVF illegal. “What we’re seeing now is that infertility patients are truly the collateral damage of the abortion wars,” Sean Tipton, spokesperson for the American Society for Reproductive Medicine, told Nightly. The language could affect fertility procedures in two ways, Seema Mohapatra, a health law and bioethics expert at Southern Methodist University, said. The first impact could be on selective reduction, or multifetal reduction, the practice of reducing the number of fetuses in one pregnancy. This procedure is not as common today but may occur if a woman undergoes hormone therapy, which could increase the number of eggs and result in triplets or quadruplets. In these cases, there is a chance the woman or embryos could be at greater risk of an unsuccessful pregnancy, which is why a fertility clinic may decide to reduce one or more of these fetuses. This could meet the definition of abortion in states like Texas and Oklahoma, Mohapatra said. The more common practice, IVF, which results in half a million deliveries annually, is when eggs are extracted, fertilized and the embryos are formed in a petri dish outside of the body. The embryos are then genetically tested, and only the healthy ones are implanted, reducing the chances of selective reduction because they don’t have to implant as many at once, Mohapatra said. The unused embryos are either frozen and stored for later use, discarded during or after the process or donated for scientific research. The Oklahoma bill’s language doesn’t pose an immediate threat to IVF, Mohapatra said, though there’s a concern that this might not be the case in other states. “There is this worry that if Roe falls — and if there are measures that define a fetus as a person or even an embryo as a person — then destroying an embryo, depending on what the state measures are, could subject someone to fines or criminal penalties,” Mohapatra said. Republican state Rep. Wendi Stearman, the Oklahoma bill’s sponsor, said IVF was never discussed when writing the legislation and told Nightly there’s been no interest among state Republicans to restrict IVF. “The bill clearly defines abortion as terminating the pregnancy of a woman. So there’s no way that it can be interpreted as affecting what’s going on in a lab,” Stearman told Nightly. “It is not something that has ever been considered so far as I know. … I don’t expect it will be, and if for some reason it was brought up, I don’t think it would be successful.” Tipton’s group, after a thorough review of the bill language, also determined the measure wouldn’t affect IVF, but he warned that this doesn’t prevent a newly elected governor or prosecutor from interpreting the text differently. “Infertility physicians and their patients are incredibly nervous, and they should be,” he said. “None of this country’s infertility physicians are interested in being the test case to decide what the Oklahoma or any other legislature actually meant when they wrote the legal language. No one wants to be the doctor who’s prosecuted to find out what the status really is.” The legal gray area gets murkier as state legislation moves closer to the concept of fetal personhood, what Mohapatra believes is the end goal of the anti-abortion movement. This would grant fetuses or embryos the same rights a child already born. These legal questions could play out in Louisiana, where a bill is working its way through the Legislature that would classify abortion as homicide and give full rights to embryos, potentially criminalizing IVF. Alabama’s governor has already signed a bill into law that bans nearly all abortions and grants a fetus the rights of a person, but lawmakers included language explicitly exempting in vitro fertilization and assisted reproduction. The goal, by and large, doesn’t appear to be to make IVF illegal, Tipton said, but restrictive abortion bans in turn could make “doing IVF properly illegal” in some states. If doctors aren’t authorized to freeze eggs, it could mean suboptimal care or lower the chances of a successful pregnancy. “I don’t think most components of the anti-choice community are out to get infertility patients,” Tipton said. “But they are perfectly happy to throw them under the bus on the way of stopping abortion.” Welcome to POLITICO Nightly. Reach out with news, tips and ideas at nightly@politico.com. Or contact tonight’s author at mward@politico.com, or on Twitter at @MyahWard.
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