The impact of overturning Roe v Wade on fertility treatment is yet to be seen 

In June this year, the United States Supreme Court overturned Roe v Wade, calling it 'egregiously wrong from the start.' In a seismic disturbance of the reproductive landscape, Dobbs v Jackson Women's Health Organisation jettisoned nearly half a century of precedent in the USA.

It has already had profound implications for people seeking abortions in America, but its impact is even more far-reaching. States now have authority to impose laws that could directly or indirectly limit access to fertility treatments that involve the creation of embryos or preimplantation genetic screening.

One of the problems with the decision is the precedent it sets for constitutional analysis. The Dobbs opinion states that a right to abortion is not supported by the constitution because it is not mentioned in the constitution and it is not 'deeply rooted in this Nation's history and tradition'. This literalist approach brings into question whether IVF or preimplantation genetic testing are protected as these didn't exist in 1848 when the constitutional Amendment at issue was written.

Even before Roe v Wade was overturned, scholars questioned whether the reproductive rights recognised by Roe applied to fertility treatment, especially if Roe was grounded in protecting the bodily integrity of the pregnant person. With IVF, for example, frozen embryos do not impact one's bodily integrity.

Further, the Dobbs decision specifically declares that the state's legitimate interest in 'potential life' and the 'unborn human being' can be expressed through laws showing 'respect for and preservation of prenatal life at all stages of development' (emphasis added). It makes no distinction between implanted embryos and embryos created in vitro, whether fresh or frozen.

The Supreme Courts' wording in overturning Roe v Wade seems to give the green light for states to confer legal personhood status on fetuses or embryos. Bills have already been proposed in at least ten states to do just that, the New York Times reports. And depending on how states define abortion, there may be questions about whether abortion bans (un)intentionally prohibit destruction of embryos created for IVF treatment. Oklahoma, for example, prohibits abortions of the unborn child, which it defines as a 'human fetus or embryo in any stage of gestation from fertilisation until birth.' And it defines 'fertilisation' as 'the fusion of a human spermatozoon with a human ovum.' Would frozen embryos be protected under Oklahoma's law?

After the overturning of Roe v Wade, it seems abundantly clear that states are constitutionally free to penalise embryo destruction or perhaps even embryo freezing, which might be viewed as child abuse. This could severely impact the practices of IVF and screening for genetic disorders or mutations, including PGT, which often result in embryo disposal. States could limit the number of embryos that can be created at a time or perhaps even prohibit PGT entirely or for certain purposes, such as sex selection, which is currently legal in the USA.

To avoid embryo destruction, clinics might rely on 'compassionate transfer' – transferring embryos during a point in the menstrual cycle when pregnancy is unlikely to occur. Or they might insist on creating one embryo at a time to avoid the issue of extra embryos, which could slow down or limit the number of embryos available to a person undergoing IVF.

Concerns about potential restrictions on IVF have already led fertility clinics and patients to move frozen embryos from the most abortion-restrictive states, ABC News reported. These responses, however, raise reproductive justice concerns around access in making an already expensive procedure more costly, less efficient, and even more inaccessible for the marginalised.

As others have pointed out in a JAMA Viewpoint article, politics rather than the Constitution will dictate whether states prohibit or limit various uses of assisted reproduction. In other words, the Constitution doesn't prevent such laws, but legislatures might choose not to enact them for political reasons. In 2011, Mississippi's Personhood Amendment was soundly defeated, NPR reported because of voter concerns regarding its potential impact on IVF. Recent research by the Washington Post shows that abortion bans often exempt IVF and that very few groups find IVF objectionable. Thus, it remains to be seen how much IVF in fact will be restricted.

While politics may discourage legislators from prohibiting IVF outright, other treatment options remain vulnerable. For example, selective reduction, commonly used to reduce the number of fetuses when embryo transfer (or natural reproduction) results in multiples, would violate the strictest abortion bans.

And, as reported by the Washington Post, prenatal testing of embryos might become more complicated in states with abortion bans, which force patients with prenatal diagnoses to travel out of state to obtain abortions, if they want one – and if they have the means. Only a few states with bans have exemptions for lethal anomalies according to the Guttmacher Institute; none has exemptions for non-lethal anomalies. The likely result will be a disproportionate number of children with genetic disorders born into low-income families, especially in states with stringent abortion restrictions.

Finally, even surrogacy might be affected in abortion-restrictive states, the Press Herald reported, now that the right of surrogates to access abortion if they desire is no longer protected. This reality will add a potential layer of complexity to the legal agreements entered into by surrogates and intended parents.

While the full impact of reversing Roe v Wade in many areas remains uncertain, there is no doubt that it will affect nearly all aspects of reproduction including fertility treatment, as I previously argued in Slate. It will be many years before we know its full reach in this area and others.