By LINDSAY WHITEHURST and LINDSEY TANNER
If the Supreme Court follows through on overturning Roe v. Wade, abortion likely will be banned or greatly restricted in about half the U.S. states. But experts and advocates fear repercussions could reach even further, affecting care for women who miscarry, couples seeking fertility treatments and access to some forms of contraception.
Many conservatives insist they are only interested in curtailing abortion, and legislation passed so far often has exceptions for other reproductive care. But rumblings from some in the GOP have experts concerned, and laws banning abortion could also have unintended side effects.
“The rhetoric has been really increasing over the last several years,” said Mara Gandal-Powers, the director of birth control access at the National Women’s Law Center. “There’s definitely a domino effect which I think people are really starting to wake up to and see this is how far it could go.”
If Roe is overturned, as suggested by a leaked draft opinion, states will set their own abortion laws, and conservative lawmakers are already passing a steady stream of deeply restrictive regulations. Oklahoma lawmakers, for example, passed legislation Thursday banning abortion at conception, the strictest in the nation.
Although that bill has some exceptions, it signals a direction that is deeply worrisome for many doctors.
“I truly think the people writing these laws either have no concept of the broad implications or do not care about how this impacts so many aspects of women’s health care,” said Dr. Kristyn Brandi, a New Jersey OB-GYN who provides abortion care.
“In medicine, you are not considered pregnant until this fertilized egg is implanted into the uterus — which happens after fertilization,” Brandi said. She said it is unclear whether doctors performing infertility treatments would be in violation of the law if they dispose of extra fertilized eggs. The Oklahoma measure “is not based in science and is incredibly confusing and frustrating for medical professionals trying to provide evidence based care.”
The Roe decision was based on a constitutional right to privacy — and the decision leaned on another landmark case eight years earlier that gave married couples the right to birth control, Griswold v. Connecticut.
Reliable birth control is now a feature of life for millions of Americans, but in March U.S. Sen. Marsha Blackburn of Tennessee recorded a video message naming the Griswold decision as “constitutionally unsound.” She’s not proposing restrictions on birth control but hasn’t commented further to clarify what she meant.
Other conservatives have conflated emergency contraception, often known as the morning-after pill, with abortion. In Idaho, for example, it was prohibited at school-based health clinics last year under a law banning public funding for “abortion related services.”
Along with long-acting birth control devices called IUDs, emergency contraception has been been attacked by abortion foes who believe life begins when an egg is fertilized.
But those pills have no effect once a pregnancy is established, after implantation in the womb, Brandi said.
“You can take Plan B all you want when you’re pregnant. It will not do anything to your pregnancy,” she said.
Emergency contraceptive pills like Plan B and IUDs may also prevent a fertilized egg from implanting in the womb, but experts say the science on that isn’t clear. It is believed they mostly work by blocking fertilization.
Political attempts to block access to intrauterine devices and other birth control “would be consistent with the pattern that we’re seeing right now,” said Dr. Jennifer Kerns, an associate professor at the University of California, San Francisco who also provides abortion care. “Many of us are very concerned that that’s kind of the next up on the chopping block.”
In Missouri last year, for example, there was a failed effort to prevent IUDs and emergency contraception from being paid for by Medicaid. But in Tennessee, which just passed harsh penalties for providing abortion medication, Republican Senate Speaker Randy McNally pushed back on any suggestion that contraception could be in the crosshairs.
“Contraception and abortion are not the same thing. One is a responsible way to prevent pregnancy. The other ends a human life. It is a flagrant attempt to change the conversation and it won’t work,” spokesman Adam Kleinheider said in a statement.
The governor of Mississippi, one of 13 states that will immediately ban abortion if Roe is overturned, wouldn’t say whether he’d sign a hypothetical birth-control ban when asked on “Meet the Press.” Gov. Tate Reeves later clarified on Twitter: “I’m not interested in banning contraceptives.”
But doctors also worry other forms of reproductive care, like treating ectopic pregnancies, could be targeted. These occur when a fertilized egg implants outside the uterus, often in a fallopian tube. They are often life-threatening medical emergencies because the fragile tube can rupture, causing massive internal bleeding.
In 2019, an Ohio Republican proposed a measure that would have compelled doctors to try transplanting ectopic pregnancies into the uterus or allowing insurers to cover the hypothetical procedure, which is considered medically impossible.
After Texas banned abortion after six weeks, Kerns said colleagues there have told of patients with ectopic pregnancies being transferred out of state for treatment, putting their health at risk.
Physicians may even become hesitant to treat miscarriage, said Brandi, the New Jersey OB-GYN.
Women often miscarry alone, early in pregnancy, with no need for medical assistance. For others, it involves heavy prolonged bleeding and treatment is exactly the same as abortion — the same pills or procedure. Doctors in states that outlaw abortion would fear repercussions for treating miscarriages, Brandi said. Most end safely but infection is a risk, she said.
Plus, Brandi added, it can take eight weeks for someone “once they’ve diagnosed with a miscarriage to actually pass the pregnancy” without intervention. That can be traumatic, particularly for women who wanted to be pregnant.
Roxanne Kelly, a mental health specialist in Arkansas, has a family history of miscarriages and ectopic pregnancies. Knowing she’s at high risk, she shudders hearing politicians equate treatment for both with abortion.
“Instead of receiving medical care, … I would be treated potentially as a murderer,” Kelly said. She shared her fears with her husband recently, and he “immediately offered to get a vasectomy,” saying “it’s reversible and keeps you safe,” Kelly said.
Meanwhile, some states still have abortion bans on the books that date back to the 1800s. If Roe is overturned, those bans with vague definitions of abortion could snap back into effect.
“Some states don’t say what abortion is; they just say abortion is a crime,” said Mary Ziegler, a law professor at University of California, Davis. “There’s a history of defining abortion more broadly to include steps in IVF or some forms of contraception.”
The Supreme Court isn’t expected to issue its final ruling until June or July, but some states are already considering going beyond banning abortion. Lawmakers in Louisiana considered a proposal to make it a homicide — a plan the governor said could criminalize some types of contraception and parts of the in vitro fertilization process.
The legislation stalled, but it could signal future tactics.
Oklahoma passed a series of strict new anti-abortion measures after seeing abortions spike as a ban in nearby Texas sent women to surrounding states. Legislation passed Thursday and set to be signed by the governor has exceptions for ectopic pregnancies — despite opposition from at least one lawmaker — and contraception, too, but not a specific exception for in vitro fertilization.
The legislation, which is enforced through civil lawsuits similar to the Texas ban, would “provide strong, additional protection of the life of unborn children in Oklahoma,” Republican sponsor Rep. Wendi Stearman said in a statement.
A line describing an “unborn child” as one at any stage of gestation means it likely would not apply to embryos fertilized in a lab, leading some fertility doctors to say this bill would have little effect on people seeking IVF, but it could still apply to the selective reduction process sometimes used to remove a fetus from a woman’s womb if fertility treatments result in multiple pregnancies, said Seema Mohapatra, health law and bioethics professor at SMU Dedman School of Law.
“I think it is very reasonable to be fearful of what comes next,” Mohapatra said. “At what point does your reproductive decision making, even for people that are really, really desperately wanting a child, become constrained?”