A ban has been enacted on in-state abortion care. The import of these bans for the practice of reproductive medicine and, specifically, the use of Assisted Reproductive Technology (ART) to build families, varies on a state-by-state level. While the majority of states’ abortion ban statutes are applicable in the context of a pregnancy, many state laws also include definitions stating that “personhood” begins at fertilization or even conception. Such definitions -- whether intentionally or not -- have the potential to implicate and even ban the use of ART, including in vitro fertilization (IVF), though some states have taken steps to carve this out as allowable. In a growing number of states, statutory restrictions severely limit access to abortion care and implicitly threaten the unhindered practice of reproductive medicine.

In 2022, Arkansas’ then-Attorney General certified a 2019 state law banning all abortions except those done to save the life of the pregnant person (the law says “mother”) in a medical emergency. For some, that did not go far enough. In 2023, policymakers in Arkansas are actively weighing measures to put abortion care even further out of reach for the state’s citizens, who are already forced to travel out-of-state for care.

Among those measures is a proposal requiring any, as defined (Defined as “any person engaging in commerce or in any industry or activity affecting commerce” who employees at least 50 employees for each working day during each of the 20 more more calendar work weeks in the current or preceding calendar year, as well as any public agency, person “acting directly or indirectly in the interest of a covered employer to any of the employees of that employer” and successor “in interest of a covered employer.”), in-state employer who covers “abortions or travel expenses related to abortions.” Notably, only full-time employees who have worked with the employer for at least one calendar year would be eligible for paid maternity leave under the proposal, which caps the benefit at 100% of the eligible employee’s salary or the 12-week average weekly pay.

Arkansas legislators recently approved a measure, which the Governor has signaled intent to sign (See, https://www.arkansasonline.com/news/2023/mar/05/utah-governor-backs-abortion-measure/) , repealing the state law under which an abortion clinic can be licensed by the state Department of Health. Notably, this measure would not repeal existing reporting or inspection requirements for in-state abortion facilities. By far more concerning to many is Arkansas HB 1174, a personhood measure that would allow state prosecutors to pursue murder charges against women who have abortions. Moreover, lawmakers expressly removed a carve out that provided a defense to charges in cases involving IVF – meaning that practitioners would be liable, if this passed as-is, for performing procedures that fall under the broad definition of abortion.

In Arkansas, where, as previously discussed, abortion has been banned post-Dobbs and where conservative lawmakers seek to further restrict access to abortion care, Democrats have nonetheless introduced measures to protect abortion access. While, given the state’s political composition, these are expected to fail, they bear mention. Included is a proposed amendment to the Arkansas state Constitution providing that an “individual’s right to reproductive freedom shall not be denied, burdened, or infringed upon unless justified by a compelling state interest achieved by the least restrictive means.” The proposal goes on to provide that the state may still regulate the provision of abortion care after fetal viability, provided that in no circumstance the state prohibits an abortion that is medically determined to protect the “life or physical or mental health” of a pregnant individual.

• Seemingly no impact on IVF or other ART procedures because the law prohibits abortion, which is defined as acting to terminate the pregnancy of a woman.
• The statute does define “unborn child” to apply from fertilization to live birth, but this term is only used in the context of defining abortion to mean termination of a pregnancy causing the death of an unborn child.

There are no explicit references to IVF or reproductive medicine services.

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• “Abortion” means using or administering any instrument, drug, or other substance or device with the purpose to terminate the pregnancy of a woman.
• “Fertilization” means the fusion of human spermatozoon with a human ovum.
• “Unborn child” means an individual organism of the species Homo sapiens from fertilization until live birth.

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The trigger law is effective upon:

• Certification by the Attorney General that the Supreme Court overrules, in whole or in part, the central holding of Roe v. Wade, thereby restoring to the State of Arkansas the authority to prohibit abortion;  or
• Adoption of an amendment to the Constitution that, in whole or in part, restores to the State the authority to prohibit abortion.

The law prohibits a person purposely performing or attempting to perform an abortion except to save the life of a pregnant woman in a medical emergency.