The Potential Impact of Reversing or Restricting the Constitutional Protections of Roe v. Wade

Legally Speaking is a guest authored column. The specific content of each column is written by the author as he/she understands the facts--scientific, medical, legal or otherwise--as they relate to the information presented, and in no way refelcts ASRM's understanding, opinion or presentation of these facts.

Following are comments prepared and delivered by Susan Crockin, J.D., as one of five speakers, which included Senator Tammy Duckworth, at a press conference Sunday, October 11, 2020, arranged by Senate Judiciary staff to highlight the potential impact that reversing or restricting the constitutional protections of Roe v. Wade and allowing “personhood” initiatives to pass would have on reproductive medicine.

“Since 1978, IVF has enabled thousands of couples to overcome infertility and other medical conditions to create the families they long for. Continuing advances have ensured both safer and more successful pregnancies, and more and healthier children.

Without the privacy protections of Roe and its progeny, states would be free--as some have repeatedly tried to do already--to enact laws that confer legal “personhood” beginning at fertilization. These would severely restrict the practice of IVF and pregnancy management.

Medical experts estimate that 2/3 of natural pregnancies fail to result in a live birth solely for biological reasons: fertilization is a chaotic process, not a singular moment in time--it can result in molar pregnancies or embryos with genetic characteristics incompatible with life, and ectopic pregnancies that risk the life of the woman and cannot result in a live birth.

If an embryo or fetus is considered a legal person, doctors who attempt to save their patient with a life threatening ruptured ectopic pregnancy, or embryologists who drop a petri dish, could be at risk of manslaughter or murder charges.

Today, IVF overcomes many obstacles and success rates continue to improve--in some instances exceeding those in nature: identifying healthy embryos, reducing multiple cycles and multiple births through single embryo transfer--all reduce costs and provide more individuals the opportunity to create families.

  • We now know that culturing fertilized eggs a few days longer--to the blastocyst stage--allows doctors to better determine which to implant since those that do not make it to that point would not have resulted in a successful pregnancy.
  • We now know that cryopreservation and implanting thawed embryos into a non-medicated uterus increases the chances of a successful pregnancy--some embryos will not survive that process, again likely those that would not have made a baby.
  • Pre-implantation genetic testing can identify fertilized eggs that do not carry lethal diseases such as Tay Sachs and cystic fibrosis. Some years ago, I helped a couple who conceived naturally, and carried and buried several newborns--each carrying a lethal disease--until they could finally get insurance to cover PGT to identify an embryo that did not carry the disease and have a baby who survived beyond a few weeks. It is impossible for me to understand what is not pro-life about that family and their physicians.
All of these advances--and so many longed-for families--would be threatened if the Supreme Court reduced constitutional protections and life were defined to begin at fertilization.”

S.L. Crockin, 10/11/2020

A column highlighting recent court decisions affecting the assisted reproductive technologies and the families they create, written by Susan L. Crockin, J.D. and guest authors who offer unique perspectives and expertise on significant legal topics.  

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