State Abortion Bans Raise Questions About Fertility Treatments

In states that do not allow abortion, there can be a variety of unintended consequences for couples seeking fertility treatments.

Depending on their language and interpretation, state abortion bans can hinder 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 limited over time, as well as more expensive,” says Lauren Winans, CEO of Next Level Benefits, an HR consulting firm in Pittsburgh.

“We’re in for a long period of uncertainty,” said Sean Tipton, chief advocate and policy officer for the American Society for Reproductive Medicine, a Washington, DC-based nonprofit organization representing providers of reproductive medicine. “There’s probably going to be a lot of legislation in the next year and a half, and following the legislation there will almost certainly be litigation, so I think it’s going to take a while before we can provide definitive answers.”

“It just exploded with questions in all sorts of areas,” says Alina Salganicoff, director of women’s health policy for Kaiser Family Foundation, based in San Francisco. “There are a lot that are going to shake out over time. At the moment, we have a lot more questions than we have answers on all fronts.”

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

IVF “could easily violate many of these state laws,” Ben Conley, a lawyer at Seyfarth Shaw in Chicago, said in a Webcast for the Society for Human Resource Management (SHRM). “The law in Oklahoma at the moment will penalize the termination of a fertilized egg. It is a component of IVF.”

South Carolina and Alabama specifically exempt IVF procedures from their abortion ban. In Louisiana, an embryo is legally considered a person, and women undergoing IVF cannot dispose of their unused embryos. Freezing of fertilized embryos is allowed there.

The state abortion laws usually discuss embryos in the context of a pregnancy, suggesting that they do not necessarily apply to those embryos that have been created but have not yet been 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 will be “problems with sites that store embryos and how they will deal with embryos that have not been implanted,” Salganicoff said.

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

“There has been a movement to do fewer implants to try to avoid the need to do selective reductions, but I think this is an area where clinicians can be very concerned in terms of what they can do,” Salganicoff said. . “My gut is no now, it will be considered an abortion. I do not see the law making any of those distinctions. It is a real issue.”

In states with abortion bans, “still remains to be seen” whether fertility clinics will change their practices or decide to close or relocate to another state, Tipton said.

“It’s reasonable to expect some changes in patient experience, expectations, available treatment options and outcomes,” said Garrett Hohimer, director of policy and advocacy for the Business Group on Health, a Washington, DC-based nonprofit that employs large employers. represents health policy. .

Eemployer-sponsored coverage

Twenty-four percent of employers provided IVF coverage this year, down from 25 percent in 2018, according to SHRM’s annual survey of employee benefits. Similarly, 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 reducing coverage for fertility treatments if they are concerned about liability and costs in the aftermath.Roe era.

“We expect a lot from ERISA [Employee Retirement Income Security Act] sponsors plan to monitor their programs and continue to adapt as circumstances change to ensure compliance and provide meaningful benefits to employees and their families, ”Hohimer said.

“It is natural to expect that fertility benefits may come more under 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 absolutely necessary, especially not so soon after the verdict. There is a bit of a wait-and-see happening at the moment.”

Costs can rise for employers, as well as employees who go to fertility clinics.

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

“It is quite possible that any increase or uncertainty in state-to-state requirements, treatment constraints or other constraints could lead to increased costs due to the increased administrative burden associated with the assessment and navigation of new and evolving constitutional law and enforcement issues. , “Hohimer agreed. .

“In addition, state-driven changes to medical practice regulation, business needs and accountability for medical practices, and the provision of fertility services can affect the provider’s operations, efficacy, efficacy and outcomes for patients, which can increase costs,” he added. “For example, planning costs may increase if fertility treatments are extended and require more procedures or, alternatively, lead to an increased rate of higher-risk multiple pregnancies.”

It is “very possible” that employers could see more high-risk and high-cost pregnancies, if selective reductions are not allowed, Salganicoff said. “Twins and triplets are much higher than a single birth and tend to be much more expensive and result in a caesarean section. The cost of an abortion is much less than the cost of a pregnancy, even a healthy pregnancy. A high-risk pregnancy is, of course, even more than that. “

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

The ban on abortion by the state “may lead some to seek out-of-state fertility options and make broader changes, including moving to another state to facilitate their preferential treatment. Employers with more on-site or localized operations, and less of a virtual workforce, can see increased turnover in certain demographic factors driven by these state-by-state changes and dynamics, ”Hohimer said.

Some women may decide that under the current circumstances they cannot or do not want to choose IVF.

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

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