Though news leaked on the 3rd of May 2022 that the Supreme Court intended to overturn Roe v Wade, this issue has been brewing for years in the underbelly of US courtrooms.
This was underlined by Katheryn Kolbert, who gave a TED talk in December 2021 entitled ‘The End of Roe v Wade and what comes next for reproductive freedom’1. The writer and public-interest attorney worked on the 1992 case, Planned Parenthood v Casey, of which was widely accredited to saving Roe v Wade three decades ago. In the outcome of Casey, the Supreme court issued a joint opinion that they must uphold the rights of women to obtain an abortion until viability in all US territories. Though they aimed to ‘uphold the rights of women to obtain an abortion’, Casey’s decision permitted states to enact barriers to abortion unless they created undue burdens on women – as a result in the following three decades, states legislated and upheld various restrictions.
An example of these restrictions nearly cost Sofia Vergara, a Columbian actress known for her role in Modern Family, the rights over her own body and finances. Vergara and her then fiancé, Nick Loeb, began IVF treatment in 2013, at the Art Reproductive Centre in Beverley Hills, California. Both signed a contract in 2013 that stated if either party wished to use the eggs, they would need consent from both parties. The contract apparently stated that one party could not use the ‘cryopreserved material’ to create a child without the written consent of the other. Later, after Vergara and Loeb’s relationship ended, Loeb wished to gain access to some of these eggs. Vergara denied. Loeb then attempted to sue for the custody of the two eggs residing in the Californian lab. Leob was unsuccessful.
To take these actions further, in 2016, Loeb took the matter to the state of Louisiana and formed a trust for the two embryos he wished to receive custody over. Loeb entered a new lawsuit that argued, because Vergara was denying access to the embryos, she was depriving them of their inheritance from the trust. As the embryos could not be taken and implanted, they had no way of accessing their inheritance. Loeb created this trust in Louisiana as it is widely considered a ‘pro-life’ state. Under Louisiana law, an in vitro fertilised human ovum (fertilised egg) is given the legal status of a ‘juridical person’ 2. Therefore, this state offered embryos far more legal personality and rights than in the state of California. The significance of this is that these two eggs now had the potential to embody an overriding interest over Sofia Vergara, the woman whose body they eggs came from. Loeb went as far as naming these two embryos, Emma and Isabella, and had them file a lawsuit against Vergara demanding that they were brought to birth.
Fortunately, the state of Louisiana dropped the law suit as it was decided this matter was out of their jurisdiction. The treatment was in California, the embryos were held in California and Sofia and Nick’s relationship had no part in Louisiana. Nick appealed to the Louisiana Supreme Court and ordered Vergara to pay $80,000 in legal fees. However, this matter has finally been dropped. Leaving the haunting question of, what if? What if Louisiana were able to rule on the case and demand Vergara to give Leob access to her own DNA?
Though this case was before the overturning of Roe v Wade, it underlines another aspect as to why the overturning is so alarming, especially when considering IVF. If a fertilised egg is now regarded as a legal entity, as a person, abortion laws would likely make it illegal to discard embryos. This would impose issues due to the very nature of IVF treatment. During the treatment, approximately 60% of fertilised eggs will successfully develop into an embryo, therefore these laws may restrict how eggs are fertilised and, once they are, what is done with them. Standard IVF procedures in place to safeguard both the parent and unborn child, such as selective reduction, could be regarded under the umbrella of ‘abortion’. Selective reduction is a process that lowers the number of foetuses in a single pregnancy to boost the chances of success. And though many would unlikely deem this as an abortion as these embryos would not have re-entered the womb, under Texan law for instance, this would qualify as an illegal act. “This means that if there is anything genetically abnormal with these embryos, discarding them would be against the law due to these personhood laws,”3. Therefore, to avoid human suffering or financial implications, fertility clinics will likely be more reluctant to offer treatment to couples for financial reasons, in fear of losing their licence or, in more serious cases, jail time.
To paraphrase Katheryn Kolbert, the bottom line is, this is not a pretty picture. And, as Roe v Wade has now been officially overturned, what now? Since the decision in 1973, citizens have been saying ‘save Roe, save Roe, save Roe’, but that strategy is no longer feasible. We need to pass the boundaries set up against us, and enact different movements to our parents and grandparents. ‘We’ve got to build a badass social justice movement. Which means loudly crying for our rights, loudly saying this is something that matters to us’4.
Written by Katie Wills