Jeopardize......

It’s not just about abortion

How birth control, cancer care, and more could change in a post-Roe America.

By Dylan Scott

The end of Roe v. Wade will not only jeopardize access to abortion in many states, it could have wide-ranging and unpredictable consequences for medical care, including fertility treatment, contraception, and cancer care.

This post-Roe world will be, in many ways, a new era for medical care in the United States, one that could transform medical services for conditions that range far beyond pregnancy, either by making them illegal or by putting their legality in question.

The consequences are unpredictable. Michelle Banker, director of reproductive rights and health litigation at the National Women’s Law Center, told me in an interview before Friday’s decision that the effect on other types of health care will depend upon the answers to “open and untested questions” in US courts. Some of it will rest on how judges will interpret new state abortion bans. States could also be emboldened by the Supreme Court’s ruling to pass new legislation that restricts other medical services.

History would suggest places that outlaw abortion tend to have less access to other reproductive care as well. In Ireland, which only recently legalized abortion, there is still less access to in vitro fertilization and certain contraceptives than in the rest of Europe, even after abortion became legal. In the US, a health system that is already fractured will become even more so, limiting access to medical care particularly for marginalized patients. Whether you can get certain health care services may be predicated on where you live (or whether you can afford to travel).

“The breadth of the potential health care consequences is so broad,” Banker said. “The first place to start is this is going to result in the death of pregnant people.”

The United States has the highest maternal mortality rates among wealthy nations; Black Americans have a significantly higher mortality rate than anywhere else in the developed world. The risk of death from carrying a pregnancy to term is much higher than the risk of death from undergoing an abortion. One estimate puts the number of forced birth in the first year after Roe is overturned at 75,000; the maternal mortality rate in the US is about 1 in 10,000.

The impact the end of Roe could have on pregnancy care could reach much further. As the Atlantic’s Sarah Zhang wrote, pregnant women undergo genetic and other tests throughout their pregnancy, meant to assess the health of the fetus and identify any anomalies that could be fatal or life-altering. In some cases, parents who learn about these anomalies choose abortion. But that may no longer be so simple if abortion is now outlawed or severely limited. Decisions about whether to get genetic testing and when could be affected.

By the same token, most abortion bans would carve out exceptions if the health of the mother were in jeopardy. But whether a complication represents a life-threatening risk to the mother’s health is in part a judgment call on the part of her doctor — and the possibility of legal consequences could make the cost of mistakes much higher.

“At the very least, there may well be a chilling effect due to providers’ and patients’ uncertainty as to whether treatment could expose them to civil or criminal liability,” Banker said.

Fetal personhood laws that convey constitutional protections to unborn fetuses would further limit a pregnant person’s choices in medical care. Several states have attempted to pass such a law, but they have thus far been held up by the courts. This new post-Roe jurisprudence could embolden those states and others to put such measures into place. Law enforcement or private citizens, depending on the state law, could bring complaints. The recently signed Texas law, for example, deputizes private citizens by creating a financial incentive for them to take civil action against people who seek or provide abortions.

Or, in a less extreme example, what happens if a pregnant person is also receiving cancer treatment or taking mental health medication that could affect the health of their fetus? If they stop receiving that medical care, their health could be in danger. But if they continue to receive it, the fetus could be affected. What are they and their doctor supposed to do?

“The laws that criminalize abortion are going to impact medical decision-making, and that’s terrifying,” Banker said.

Supporters of abortion rights fear that, unchained by the Supreme Court, states could push deeper and deeper into the lives of pregnant women and the decisions they make about how to conduct themselves.

People have been arrested for substance use during pregnancy, based on reasoning that they are harming the growth of the pregnancy. Tennessee passed the first law permitting the prosecution of pregnant women who use drugs. That alone is objectionable to people who oppose a criminalized approach to substance use. But they also worry that such laws are just the tip of the iceberg in a post-Roe reality. Could a pregnant woman be charged with a crime if she drinks a glass of wine? Or if she goes on a hiking trip that a complainant thinks would imperil the health of her fetus?

These questions will be answered by the specifics of state laws and the discretion of prosecutors in different places. But they are questions that were unfathomable just a few months ago.

“How far down this path could states go?” said Elizabeth Nash, who tracks state policy at the Guttmacher Institute, in an interview before Friday’s Supreme Court ruling. “That might sound a bit far-fetched to people but we have seen states take drastic actions in relation for some pregnant people.”

What the end of Roe means for other kinds of reproductive health care

Beyond medical care during pregnancy, the end of Roe could usher in a wave of new restrictions on access to contraception and fertility treatment.

The right to contraception is currently upheld by two previous Supreme Court decisions: Griswold v. Connecticut enshrined the right for married people and Eisenstadt v. Baird did the same for unmarried people.

But the current Court is clearly not bound by those precedents if they are willing to overturn Roe v. Wade. And some prominent Republicans, such as Sen. Marsha Blackburn (R-TN), have referred to those prior court decisions as constitutionally unsound in the days since the Alito draft leaked.

“That puts case law in jeopardy because it relies on this idea that rights not specifically named in the Constitution are only entitled to special protection if they are deeply rooted in the nation’s traditions,” Banker said.

Other experts I spoke to agreed. “The stage is very much set for state legislators to ban contraception if they want to,” Sean Tipton, who works on policy issues at the American Society for Reproductive Medicine, told me before the Supreme Court ruled.

Would state legislators want to ban condoms or even birth control pills? Maybe not. But new laws or even state abortion bans could target other kinds of birth control.

Many of these states want to define the beginning of life as early as possible in the biological process. Oklahoma, for one, passed a law that recognized an unborn child’s life as beginning at fertilization. Other states describe the moment of conception. But, as Tipton pointed out, the early stages of pregnancy are, medically speaking, a process. There is not a single moment of conception.

But if states define life in such a way, then contraceptives that could prevent a fertilized egg from becoming implanted could be under threat.

IUDs and the morning-after pill would be threatened under such a legal regime. In the vast majority of cases, IUDs work by preventing fertilization: the sperm and the egg never meet in the first place. But they also might prevent implantation under certain circumstances. There is also some controversy about whether Plan B, the morning-after pill, prevents fertilization in the first place or whether it blocks the implantation of a fertilized egg. The latter could arguably be illegal in states that recognize life at fertilization. Lawmakers in Idaho, for example, announced hearings on whether to ban emergency contraceptives and possibly IUDs before the Supreme Court had even issued its final ruling.

Then there are fertility treatments — particularly in vitro fertilization — that depend on fostering a larger number of eggs but typically only use a small number of them. If an embryo is conferred the same rights as a toddler, are those procedures suddenly illegal?

As Tipton put it to me, what if a doctor puts 199 embryos in a freezer for IVF treatment, and 198 of them come out of the freezer okay? “Does that mean a homicide has been committed?” he said.

Experts imagine other possible restrictions on procedures like IVF, particularly in states that define life as beginning at conception or fertilization. That alone could put IVF in legal jeopardy. States could also institute new restrictions on those procedures, now that the right to privacy has been redefined. Maybe the number of embryos could be limited. Maybe state legislators restrict which people are allowed to avail themselves of those services — to only straight married couples, for example.

And while there is a tension between ostensibly “pro-life” politicians restricting access to fertility care, there is an expectation that anti-abortion advocates would be willing to let these medical services be collateral damage in order to achieve the goal of outlawing abortion.

“Most right-to-life proponents are not interested in doing anything to hurt fertility patients,” Tipton said. “But they’re very willing to throw those patients under the bus to end abortion.”

Health care that has nothing to do with pregnancy could be affected too

The new jurisprudence could also affect access to health care that has nothing to do with pregnancy or reproduction, experts say.

Medical care for people undergoing a gender transition would be one possible casualty. “The decision in particular puts gender-affirming care in its crosshairs,” Banker said.

In the opinion, Alito cited a 1974 decision, Geduldig v. Aiello, that takes what Banker calls “a very narrow and cramped view” of what constitutes sex discrimination. For Alito’s purposes, that narrow view of sex discrimination supports the argument that banning abortion would not constitute discrimination against pregnant people on the basis of sex.

But Banker says the same logic could be applied to gender-affirming health care such as surgery or hormonal treatments. If the Supreme Court’s definition of sex discrimination is now much narrower than it used to be, then opponents of those services could argue that denying a person gender-affirming medical care is not actually discriminatory.

“Those arguments are easily refuted under modern precedent,” Banker told me. “But the draft’s language and citation to Geduldig raises concerns that we may see those arguments gain more traction.”

Old battles over medical research or treatment could also resurface, Tipton said. Modern science has developed treatments for spinal cord injuries, myelofibrosis, and even certain cancers by relying on stem cells. More treatments are in clinical trials right now. But their prospects could be compromised if access to those materials is limited. Some stem cells are collected from adult body tissue, but others come from embryos.

Much of this will depend on how aggressive anti-abortion advocates decide to be, and on the success of abortion rights advocates in mounting a political and legal response to a ruling overturning Roe.

But it will undoubtedly be a new era for health care in the United States, with potentially devastating consequences for patients with a wide array of medical needs.