Morgan Small is a 1L at American University Washington College of Law.  She graduated from Clark University with a bachelor’s degree in Political Science in 2022.  She also received her Master of Public Administration from Clark University in 2023.  Morgan formerly served as a congressional intern for Congresswoman Susan Wild (PA-07), who, among others, recently introduced the bill that is the subject of this blog post.

In June 2022, the Supreme Court, in Dobbs v. Jackson Women’s Health Organization[1], overturned the longstanding precedent set forth under Roe v. Wade1, which formerly protected a person’s right to seek an abortion nationwide.  The Dobbs court ruled that abortion was no longer a privacy right permitted to citizens on the federal level, instead reserving to states the power to codify legislation restricting the reproductive rights of those previously protected under Roe.[2]  Accordingly, many states have enacted anti-abortion legislation that seeks to dramatically restrict or, even more severely, patently prohibit a person’s ability to access and receive an abortion.[3] Namely, fourteen states have enacted legislation making abortion illegal, such as Mississippi’s trigger ban — which prohibits abortion in nearly all situations — and Alabama’s total abortion ban.[4]  Dobbs, however, threatens more than just a person’s right to access and receive an abortion.  Notably, more reproductive rights activists have become increasingly concerned with the decision’s scope and impact on reproductive rights other than abortion, such as assisted reproductive technologies, (ART).[5]

ART has served an important role in American family-building for decades.  ART has been used in the United States since 1978 and generally includes procedures like in vitro fertilization and intrauterine insemination, among others.[6]  Since an estimated twelve percent of the reproductive-aged population in the U.S. is affected by infertility — and nearly one in five reproductive-age women endures infertility — ART has provided an alternative method of reproduction for persons seeking to start families of their own.[7]  Since Dobbs, the legal status of ART has been somewhat in limbo.  While abortion is no longer a constitutionally sanctioned right, ART occupies a liminal space.  The increasing passage of state anti-abortion legislation threatens the preservation and accessibility of ART, especially as certain anti-abortion legislation seeks to define the start of life at the “moment of conception.”[8]  This definition problematizes the legal status of ART, especially in vitro fertilization, and begs mention of a question posed by a policy officer at the American Society for Reproductive Medicine: “What’s the legal status of the fertilized egg that has not yet been placed into a woman to establish a pregnancy?”[9]

Responding to this concern, Senator Tammy Duckworth (D-IL) and Congresswoman Susan Wild (D-PA) recently introduced the Access to Family Building Act in Congress.[10]  The bicameral legislation would make it a statutory right for patients to access ART and for a healthcare provider to provide ART services.[11]  Likewise, the Act accords patients a statutory right regarding the use or disposition of their reproductive genetic materials, including gametes.[12]  Uniquely, the Act provides a private right to action for individuals and healthcare providers in states that have limited access to ART since, by its legislative purpose, the Act seeks to prohibit any limitations or roadblocks sprung on infertility patients seeking medical assistance.[13]  Finally, the Act allows the Department of Justice to pursue civil action against any state, government official, individual or entity that unduly limits patients’ access to infertility treatment.[14]

Senator Duckworth and Congresswoman Wild recognized that the language making access to reproductive health a statutory right has not been used before.[15]  Before this Act, Senator Duckworth and Congresswoman Wild introduced the Right to Build Families Act only months after Dobbs with the similar objective of prohibiting limitations imposed on ART access, particularly in vitro fertilization.[16]  The Right to Build Families Act, however, did not make access to reproductive health a statutory right.  Because of the increased concerns associated with strict state abortion laws, Senator Duckworth and Congresswoman Wild co-created the Access to Family Building Act as the type of legislation that could potentially preempt state anti-abortion legislation.[17]

Since the Access to Family Building Act was introduced in the House and Senate, it has been referred to the Committee on Health, Education, Labor, and Pensions[18]. While the legal status of ART presently occupies somewhat of a liminal space, the introduction of the Access to Family Building Act represents the first steps in determining ART’s legal status in the near future.

 

[1] Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022);

Roe v. Wade, 410 U.S. 113 (1973).

[2] Dobbs, 597 U.S. at 215 (2022).

[3] After Roe Fell: Abortion Laws by State, Ctr. for Reproductive Rights https://reproductiverights.org/maps/abortion-laws-by-state/ (last visited Feb. 13, 2024).

[4] Id.

[5] ASRM Applauds Introduction to Access to Family Building Act of 2024, Am. Soc’y for Reproductive Med., https://www.asrm.org/news-and-events/asrm-news/press-releasesbulletins/asrm-apploauds-intro-of-access-to-family-building-act-2024/ (last visited Feb. 13, 2024).

[6] Executive Summary: Oversight of Assisted Reproductive Technology, Am. Soc’y for Reproductive Med., https://www.asrm.org/advocacy-and-policy/media-and-public-affairs/oversite-of-art/ (last visited Feb. 13, 2024).

[7] Id.

[8] Jacqueline Howard, First on CNN: Amid post-Roe concerns, Democratic lawmakers introduce bill to protect access to IVF, CNN https://www.cnn.com/2024/01/18/health/ivf-access-bill/index.html (last visited Feb. 13, 2024).

[9] Id.

[10] S. 3612, 118th Cong. (2024).

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Howard, supra note 9.

[16] Id.

[17] Id.

[18] S. 3612, 118th Cong. (2024).