State Abortion Bans Raise Questions About Fertility Treatments

Leah Shepherd By Leah Shepherd July 11, 2022
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​In states that don't permit abortion, there could be an array of unintended consequences for couples seeking fertility treatments.

Depending on their language and interpretation, state abortion bans might hamper access to fertility treatments and criminalize the practice of freezing or discarding unused embryos created during in-vitro fertilization (IVF).

"Fertility benefits as we know them today are in jeopardy in certain parts of the country and may become more restricted, as well as more expensive, over time," said Lauren Winans, chief executive officer for Next Level Benefits, an HR consulting firm in Pittsburgh.

"We are in for a prolonged period of uncertainty," said Sean Tipton, chief advocacy and policy officer for the American Society for Reproductive Medicine, a Washington, D.C.-based nonprofit organization representing reproductive medicine providers. "There's going to be a lot of legislating in the next year and a half probably, and following the legislation, there will almost certainly be litigation, so I think it's going to be a while before we can provide definitive answers."

"This just exploded with questions in all sorts of areas," said Alina Salganicoff, director of women's health policy for Kaiser Family Foundation, based in San Francisco. "There's a lot that's going to shake out over time. Right now, we have way more questions than we have answers on all fronts."

Most of the state abortion laws are silent on whether they could apply to IVF practices.

IVF "could easily run afoul of many of these state laws," Ben Conley, an attorney with Seyfarth Shaw in Chicago, said in a webcast for the Society for Human Resource Management (SHRM). "The law in Oklahoma right now would penalize termination of a fertilized egg. That's a component of IVF."

South Carolina and Alabama specifically exempt IVF procedures from their abortion bans. In Louisiana, an embryo is legally considered a person, and women who undergo IVF cannot discard their unused embryos. Freezing fertilized embryos is allowed there.

The state abortion laws usually discuss embryos in the context of a pregnancy, which suggests it would not necessarily apply to those embryos that have been created but not yet implanted, Tipton pointed out.

IVF Process

In a typical IVF cycle, fertility doctors extract dozens of eggs and produce 10 to 20 fertilized embryos. Then they choose the best quality one or two embryos to implant in the female patient. The rest are frozen, discarded or donated to scientific research.

Where abortion bans are in place, there are "going to be issues with places that are storing embryos and how they're going to be dealing with embryos that are not implanted," Salganicoff said.

When a woman is pregnant with more than one fetus, a doctor sometimes performs a selective reduction to lower the risk of miscarriage and health risks to the mother and the remaining fetuses. For example, a pregnancy with four fetuses could be reduced to two.

"There has been a movement to do fewer implantations to try to avoid the need to do selective reductions, but I think that's an area where clinicians may be very concerned in terms of what they can do," Salganicoff said. "My gut right now is no, that would be considered an abortion. I don't see that the law makes any of those distinctions. That's a real issue."

In states with abortion bans, "it remains to be seen" whether fertility clinics will change their practices or decide to close or move to another state, Tipton said.

"It's reasonable to expect some changes to patient experience, expectations, available treatment options and outcomes," said Garrett Hohimer, director of policy and advocacy for the Business Group on Health, a Washington, D.C.-based nonprofit organization representing large employers on health policy.

Employer-Sponsored Coverage

Twenty-four percent of employers provided coverage for IVF this year, down from 25 percent in 2018, according to SHRM's annual survey of employee benefits. Likewise, 24 percent of employers covered infertility treatments other than IVF this year, down from 27 percent in 2018.

So far, "insurers and employers have done a very limited job of covering IVF for women," Salganicoff said.

Some employers may consider cutting coverage for fertility treatments if they are worried about liability and costs in the post-Roe era.   

"We expect many ERISA [Employee Retirement Income Security Act] plan sponsors to monitor and continue to adjust their programs as circumstances change in order to ensure compliance and provide meaningful benefits to employees and their families," Hohimer said.

"It is natural to expect that fertility benefits may be under more scrutiny due to compliance with legislation, and perhaps a target when looking for cost savings within the health plan budget," Winans said. "However, most employers are not going to want to make any significant changes to any reproductive health benefit unless they absolutely have to, especially not so soon after the ruling. There is a bit of wait-and-see happening at the moment."

Costs might rise for employers, as well as employees heading to fertility clinics.

"Absolutely, there will be an increase in employer medical costs, not only for pregnancy claims and infertility treatments, but also for chronic conditions," Winans said.

"It's quite possible that any increase or uncertainty in state-by-state requirements, treatment limitations or other restrictions may result in increased costs due to the heightened administrative burden associated with assessing and navigating new and evolving state legal and enforcement issues," Hohimer agreed.

"Additionally, state-driven changes to medical practice regulation, business needs and liability exposure for medical practices, and the delivery of fertility services may impact the provider's operations, efficiency, effectiveness and outcomes for patients, which may increase costs," he added. "For example, plan costs may increase if fertility treatments are prolonged and require more procedures or, alternatively, result in an elevated rate of higher-risk multiple pregnancies."

It's "very possible" that employers could see more high-risk and high-cost pregnancies, if selective reductions aren't allowed, Salganicoff said. "Twins and triplets are much higher than a singleton birth and tend to be much more costly and result in a Cesarean birth. The cost of an abortion is far less than the cost of a pregnancy, even a healthy pregnancy. A high-risk pregnancy, of course, is even more than that."

For many women, traveling to another state for IVF would be nearly impossible, given the high number of office visits involved in a typical IVF cycle. However, some women may pursue fertility treatments in nearby states that have kept abortion legal. 

The state abortion bans "may lead some to seek out-of-state fertility options and make broader changes, including moving to another state to facilitate getting their preferred treatment. Employers with more onsite or localized operations, and less of a virtual workforce, could see increased turnover in certain demographics driven by these state-by-state changes and dynamics," Hohimer said.

Some women may decide they're unable or unwilling to choose IVF under the current circumstances.

"If medical intervention is restricted, or if the process is made to be more difficult than it already is, it will no longer be a viable option for many people," Winans said. 

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