A New Challenge for Fertility Patients? Modeling IVF Access Post Repeal of Roe v. Wade

Abigail Sirus and David Sable MD

July 23, 2022

How will the Supreme Court’s overturning of Roe v. Wade affect women and couples undergoing in vitro fertilization (IVF)? Will new restrictions on what can and cannot be performed in IVF reduce the procedure’s effectiveness or limit how clinics deliver care, potentially driving patients to transfer their treatment elsewhere? Will “personhood” statutes that attempt to legally establish that embryos have constitutional rights, potentially limit the number of eggs that can be fertilized? Will states mandate that all embryos fertilized in the IVF lab must have a plan for how the embryo will be used to establish a pregnancy even if all embryos are not immediately implanted?

There has been much speculation regarding IVF in a post Roe v. Wade world.[1]To better understand the potential challenges for IVF patients and for the United States IVF sector as a whole, we examined, state-by-state, restrictions that could limit access or effectiveness of the IVF procedure. We then modeled the potential movement of patients and specimens from states with abortion restrictions that could adversely affect procedure outcomes to states without these restrictions.

Since we are trying to model the most significant potential disruption for patients, our analysis assumes a high correlation between abortion restrictions and strict IVF regulation. This may not turn out to be the case, as indicated by historical precedent and an analysis of current laws.

In a typical IVF cycle, multiple embryos are created, but only one or two are typically transferred. This raises questions about the legal rights of the non-transferred embryos, which are frozen and stored, questions that could implicate IVF as medical practice. Speaking at the recent Midwest Reproductive Symposium International (MRSI) in Chicago, lawyer and legal fertility expert Tim Schlesinger stated unequivocally that embryos, outside the body, have no constitutional rights; however, states are free to pass laws ignoring this, and those laws would have to be overturned on appeal.

Since Roe v. Wade was handed down in 1973, 1,338 abortion restrictions have been enacted with 44% enacted in the past 10 years.[2] Contrastingly, only three states have successfully enacted personhood laws (Alabama, Georgia, and Oklahoma), while several others have tried but failed once voters became aware that birth control and IVF were implicated (e.g., Colorado, Mississippi, North Dakota).[3]

If personhood laws are enacted more broadly post Roe, these provisions could compel patients undergoing fertility preservation and infertility care to:

1. Seek care in states without personhood provisions

2. Go without fertility preservation or infertility care if they cannot travel to other states due to legal, economic, geographic, or other reasons

3. Transfer existing frozen biospecimens to other locations, in anticipation of regulations regarding their use and/or disposal.

What could IVF look like in a post Roe world?

Let’s start by analyzing states with pre-Roe abortion bans or trigger bans (from here on called “abortion ban states”). According to the Guttmacher Institute, a research and policy organization committed to advancing sexual and reproductive health and rights worldwide, there are 18 states with either pre-Roe bans or trigger bans that took effect as soon as Roe was overturned: Alabama, Arizona, Arkansas, Idaho, Kentucky, Louisiana, Michigan, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin, and Wyoming.[4]

According to the Centers for Disease Control (CDC) Preliminary Assisted Reproductive Technology Report for 2020, these 18 states with abortion bans represent:[5]

  • ~26% of the total IVF clinics in the U.S.
  • ~18% of the total IVF cycles performed in the U.S.

Of the 58,533 cycles at risk, the average distance traveled to the nearest state without an abortion ban is ~260 miles one way with the majority of at-risk cycles (63% or 36,767 cycles) requiring patients to travel more than 260 miles for care. In total, patients would need to travel an extra ~19 million miles for infertility care.

With the average woman or couple needing multiple IVF cycles to become pregnant, each requiring several trips to the clinic, travel times may create a barrier to care.

Seeking fertility preservation and infertility care in other states where it is accessible

If Roe’s repeal is predictive of personhood laws being enacted in states with abortion bans, we modeled the potential movement of IVF cycles to areas with abortion access in both a) the United States and b) the United States, Mexico, and Canada, assuming that patients would transfer their care to the nearest IVF clinic that did not face these new restrictions.

Part A: United States

If we assume that: *

· Patients will both choose to travel for care and be able to cross state lines for care

· Patients will travel to the closest clinic as measured in number of miles

· Clinics that receive cycles from abortion ban states will have the capacity to accept them

· Insurance coverage remains static

· The legal status of abortion in Florida, Kansas, Illinois as well as Winnipeg, Canada and the border states in Mexico remains static

*For a full list of our assumptions and rationale, please see Exhibit 1 in the Appendix

In the United States, the following states may experience an outflow / inflow of cycles:

Image 1. Potential movement of cycles and transfers from states with abortion bans to states with abortion access (U.S. only).[6]

If personhood provisions are enacted in the 18 states with abortion bans analyzed above, Texas, Arizona, and Michigan will see the greatest outflow of IVF cycles per Table 1. The outflow of cycles and transfers are most likely to flow into Kansas (Wichita), Illinois (Swansea) and Florida (Pensacola) based on their proximity in miles to existing IVF clinics in states with abortion bans per Table 2 below.

Part B: United States, Mexico, and Canada

The potential movement of cycles could change significantly if we include Mexico and Canada in our analysis. For some Texans and Arizonans, seeking care in Mexico may shorten their travel from upwards of 856 miles at the extreme (from McAllen, Texas to Wichita, Kansas) to 16 miles (from McAllen to Reynosa, Mexico) or from 226 miles at the minimum (from El Paso, Texas to Albuquerque, New Mexico) to 11 miles (El Paso to Juárez). In fact, women have already been seeking abortions across the border with a group of U.S. state legislators from Texas, Colorado, Arizona, New Mexico, and North Carolina even having toured Mexican facilities and “praised the efforts of Mexican activists to guarantee access for women who want an abortion” earlier this year.[7]

Image 2. Potential movement of cycles and transfers from U.S. states with abortion bans to fertility clinics in Mexico.

When considering the potential movement of cycles to Canada, Winnipeg may receive an inflow of patients from Fargo, North Dakota, who would otherwise travel to the greater Minneapolis-Saint Paul area, saving 15 miles of travel. However, 15 miles of travel may not be worth crossing country borders for all patients.

Image 3. Potential movement of cycles and transfers from U.S. states with abortion bans to fertility clinics in Canada.

In summary, the majority of cycles that currently take place in southern Texas and Arizona would be redirected to Mexico while some cycles from Fargo, ND could be redirected to Winnipeg, Canada.

If cycles were redirected to Mexico and Canada, Mexico would perform 5% of total U.S. IVF cycles, Canada would perform less than 1%, and total miles traveled would decrease by ~4 million from ~19 million (if cycles are only performed in the U.S.) to ~15 million miles (if Canada and Mexico are included).

What about frozen embryos that are stored in states with abortion bans?

Regarding frozen (or cryopreserved) embryos, the path ahead is less clear. A recent New York Times article asks if patients will “be precluded from discarding unneeded embryos, and instead urged to donate them for adoption or compelled to store them in perpetuity?”.[8] According to the U.S. Health and Human Services Department, about 620,000 cryopreserved embryos existed in the U.S. as of November 2019 with some sources estimating the number to be as high as about 1 million.[9] We do not have data showing exactly where the ~1 million frozen embryos are stored, but if we assume the data on frozen embryo transfers is representative of cryopreserved embryo storage, it may be reasonable to expect a similar movement of frozen embryos to states like Kansas, Illinois and Florida as well as Mexico and Canada. We intend to explore this topic further in future analysis.

Conclusion

If the onset of abortion bans in 18 states following the repeal of Roe v. Wade leads to personhood laws being enacted, about 18% of IVF cycles nationwide may be affected. Of these 58,533 cycles, most patients (63% of at-risk cycles or ~11% of all cycles) will have to travel more than 260 miles for care within the U.S. If we include Mexico and Canada in our analysis, 61% of patients will have to travel more than 212 miles for care.

This piece is intended to be a preliminary analysis. Subsequent installments may be published as the landscape evolves and may focus on topics like:

· A deeper dive on cycle movement by type (e.g., fertility preservation, frozen embryo transfers, etc.)

· Insurance coverage landscape — the effects of potential insurance coverage changes on movement of cycles

· Impact of potential legal changes in states that are currently accepting patients from abortion ban states (e.g., Kansas, Florida)

· Texas in Focus: An in-depth analysis of the impact of Roe v. Wade on reproductive medicine in Texas

· A capacity analysis modeling potential movement of cycles based on historically demonstrated capacity

· Fertility preservation deep dive: A breakdown of implications based on type of frozen biospecimen (eggs or embryos)

· An analysis of the economic implications of moved cycles

Appendix

Exhibit 1. Assumptions

Exhibit 2. Comparison of Distance Traveled (based on 1-way miles traveled) *

*All numbers are approximations based on distance traveled between counties where IVF clinics are domiciled per CDC data, not distance to each IVF clinic’s exact address.

Sources:

[1] Hoffman, Jan. “Infertility Patients and Doctors Fear Abortion Bans Could Restrict I.V.F.” The New York Times, The New York Times, 5 July 2022, https://www.nytimes.com/2022/07/05/health/ivf-embryos-roe-dobbs.html.

[2] Nash, Elizabeth. “State Policy Trends 2021: The Worst Year for Abortion Rights in Almost Half a Century.” Guttmacher Institute, Guttmacher Institute, 12 Jan. 2022, https://www.guttmacher.org/article/2021/12/state-policy-trends-2021-worst-year-abortion-rights-almost-half-century.

[3] Needham, Lisa. “A Brief Guide to Fetal Personhood, the next Frontier in Anti-Choice Politics.” Balls and Strikes, Demand Justice, 25 May 2022, https://ballsandstrikes.org/law-politics/fetal-personhood-explainer/.

[4] Nash, Elizabeth, and Lauren Cross. “26 States Are Certain or Likely to Ban Abortion without Roe: Here’s Which Ones and Why.” Guttmacher Institute, Guttmacher Institute, 14 July 2022, https://www.guttmacher.org/article/2021/10/26-states-are-certain-or-likely-ban-abortion-without-roe-heres-which-ones-and-why.

[5] “Art Success Rates.” Centers for Disease Control and Prevention, Centers for Disease Control and Prevention, 14 June 2022, https://www.cdc.gov/art/artdata/index.html#preliminary.

[6] Distance traveled is measured in miles between counties where IVF clinics are domiciled per CDC data, not distance to each IVF clinic’s exact address.

[7] Maglione, Francesca. “Mexico’s ‘Aborteria’ Is a Haven of Last Resort for Women from Texas.” Bloomberg.com, Bloomberg, 17 June 2022, https://www.bloomberg.com/news/articles/2022-06-17/texas-abortion-law-2022-mexico-s-aborteria-is-last-resort-for-women-in-us-state.

Associated Press. “US State Legislators Praise Abortion Access in Mexico.” Khou.com, Tegna Inc., 29 May 2022, https://www.khou.com/article/news/local/texas/women-crossing-texas-into-mexico-for-abortion-access/285-b08ca68b-b35c-4d62-ad95-d8db2991e0fd.

[8] Hoffman, Jan. “Infertility Patients and Doctors Fear Abortion Bans Could Restrict I.V.F.” The New York Times, The New York Times, 5 July 2022, https://www.nytimes.com/2022/07/05/health/ivf-embryos-roe-dobbs.html.

[9] Hecker, Anna. “What Should I Do with My Unused Embryos?” The New York Times, The New York Times, 15 Apr. 2020, https://www.nytimes.com/2020/04/15/parenting/fertility/ivf-unused-frozen-eggs.html.

Kowitt, Beth. “‘If You Can Move Them, Move Them’: Fertility Experts Say the End of Roe Raises Huge Questions about the Fate of Frozen Embryos in Red States.” Fortune, Fortune, 25 June 2022, https://fortune.com/2022/06/24/roe-v-wade-abortion-ivf-embryos-red-states/.

[10] Cahn, Naomi, et al. “Is It Legal to Travel for Abortion after Dobbs?” Bloomberg Law, Bloomberg Law, 11 July 2022, https://news.bloomberglaw.com/us-law-week/is-it-legal-to-travel-for-abortion-after-dobbs.

[11] Sasani, Ava. “Is It Legal for Women to Travel out of State for an Abortion?” The New York Times, The New York Times, 24 June 2022, https://www.nytimes.com/2022/06/24/us/abortion-travel-bans.html.

[12] “Fact Sheet: President Biden to Sign Executive Order Protecting Access to Reproductive Health Care Services.” The White House, The United States Government, 8 July 2022, https://www.whitehouse.gov/briefing-room/statements-releases/2022/07/08/fact-sheet-president-biden-to-sign-executive-order-protecting-access-to-reproductive-health-care-services/.

[13] Sarkissian, Arek. “Thousands Travel to Florida for Abortions. The Supreme Court’s Ruling Could Change That.” POLITICO, POLITICO, 24 June 2022, https://www.politico.com/news/2022/06/24/florida-abortions-supreme-court-ruling-00040959.

[14] Chicago Tribune Staff. “Supreme Court Overturns Roe v. Wade. What’s the Impact on Abortion Access for Illinois, Its Residents and Neighboring States?” Chicago Tribune, Chicago Tribune, 25 June 2022, https://www.chicagotribune.com/news/breaking/ct-roe-wade-illinois-explainer-20220503-nhvjbw5zpjdndbuufflt5k6yqi-story.html.

[15] Korecki, Natasha, et al. “Abortion in Illinois Imperilled If GOP Takes Control of the State Supreme Court in November.” NBCNews.com, NBCUniversal News Group, 9 July 2022, https://www.nbcnews.com/news/us-news/abortion-illinois-imperilled-gop-takes-control-state-supreme-court-nov-rcna36908.

[16] Kemp, Adam. “Kansas Will Be the First State to Vote on Abortion Rights after Roe Ruling. Here’s What That Means.” PBS, Public Broadcasting Service, 1 July 2022, https://www.pbs.org/newshour/politics/kansas-will-be-the-first-state-to-vote-on-abortion-rights-after-roe-ruling-heres-what-that-means.

[17] CBC News. “Winnipeg Abortion Provider Bracing for Increased Demand from U.S. If Roe v. Wade Overturned | CBC News.” CBCnews, CBC/Radio Canada, 4 May 2022, https://www.cbc.ca/news/canada/manitoba/winnipeg-women-s-health-clinic-abortion-provider-roe-v-wade-1.6440927.

[18] Gibson, Shane. “‘Unbelievable’: Winnipeg Women’s Clinic Braces for Impact of U.S. Ruling Overturning Roe v. Wade — Winnipeg.” Global News, Global News, 25 June 2022, https://globalnews.ca/news/8945897/winnipeg-womens-clinic-roe-v-wade/.

[19] Solis, Gustavo. “Mexican Abortion Clinics Bracing for Influx of Americans.” KPBS Public Media, KPBS Public Media, 4 July 2022, https://www.kpbs.org/news/border-immigration/2022/06/30/mexican-abortion-clinics-bracing-influx-americans.

[20] Planned Parenthood. “Mexico: Planned Parenthood Global.” Planned Parenthood, Planned Parenthood, https://www.plannedparenthood.org/about-us/planned-parenthood-global/where-we-work/mexico.

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