Four years ago, the Supreme Court’s decision in Dobbs v. Jackson Women’s Health shifted the landscape of reproductive rights. By overturning the constitutional right to an abortion, it challenged nearly 50 years of established precedent.
The implications of this ruling stretch far beyond abortion alone. One visible impact is seen in in vitro fertilization (IVF), a process responsible for approximately 3 percent of births each year.
The public significantly supports access to IVF. During his campaign, President Trump promised to mandate coverage for all IVF treatment costs. In May, he announced a rule to facilitate employer-based fertility care coverage, while naming himself the “father of IVF.”
Yet, distinguishing between IVF and abortion poses challenges. Both empower individuals to make family-related choices and involve control over prenatal life. IVF typically requires creating surplus embryos to enhance efficiency and minimize expenses. This often leads to parents deciding the fate of these embryos—whether to discard, donate, or preserve them for future use.
Currently, over a million frozen embryos are estimated to exist in the U.S. However, the excess production affiliated with IVF becomes problematic in states enacting abortion bans to safeguard unborn children. Dobbs encouraged states to preserve “prenatal life…at all stages of development,” resulting in differing approaches to embryos versus embryos in utero.
Treating embryos as people would necessitate either the banning or regulation of IVF, hindering its success. Potential regulations include prohibiting embryo destruction, mandating transfer of all fertilized embryos, or limiting egg fertilization numbers.
For instance, Italy implemented such regulations in 2004, allowing up to three eggs for fertilization and banning embryo freezing. Consequently, IVF success rates declined, multiple births increased, heightening risks for mothers and infants, and women endured repeated hormonal stimulations.
Despite post-Dobbs difficulties, efforts continue to protect embryos and preserve popular IVF. The Trump administration labeled embryos as “children…in need of a family” while supporting IVF. Concurrently, the Texas Republican Party debates IVF bans for prenatal life protection.
Two years ago, the Southern Baptist Convention declared human embryos as people, advising infertility treatments consistent with embryo dignity. Alabama’s Supreme Court controversially ruled cryopreserved embryos as persons under wrongful death law, stalling IVF until legal immunity for providers was established.
Amid these tensions, IVF likely remains protected in many states due to demographics—older, married, non-Hispanic white or Asian, wealthier individuals who may vote to secure interests. The idea of IVF creating life might justify continued patient control over embryos.
Yet, allowing IVF while restricting abortion exacerbates societal inequities. Disadvantaged groups—often low-income women in their 20s, unmarried, and women of color—face challenges accessing abortion and IVF. High IVF costs further exacerbate inaccessibility.
Both IVF and abortion are vital reproductive healthcare as per the American Society for Reproductive Medicine. The right to pursue them remains central to reproductive justice, which emphasizes the right to have or not have children and raising them with dignity.
States that banned abortion following Dobbs compromised these rights, particularly affecting the disadvantaged. Increased pregnancy-associated mortality and infant mortality rates follow elevated abortion restrictions.
Maintaining access to IVF to create families should not become another casualty post-Dobbs. Valuing reproductive justice demands neither abortion nor IVF be prohibited—they represent two facets of reproductive choice.
Sonia Suter is a law professor at The George Washington University Law School and founding director of the Health Law Initiative.
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