Recent legal judgments, including the overturning of Roe v. Wade, have awakened uncertainties among employers regarding the impacts of a continually shifting reproductive rights landscape on their operations, employees and legal risks.
In Alabama, the state Supreme Court has established that frozen embryos hold equivalent rights to human beings, creating a legal debate that influences employee health-care provisions. While treatment has since resumed in the wake of the legislature shielding IVF providers from liability, the ripple effect of state courts’ interpretation of existing and proposed laws continues to develop the concept of fetal personhood.
In the aftermath of the Dobbs v. Jackson Women’s Health Organization ruling and the repeal of Roe v. Wade, the notion of fetal personhood has moved into the central spotlight from the periphery. As a result, 11 states have broader definitions of “person,” and 14 states are deliberating personhood legislation, displaying the extensive reach of entities campaigning for these modifications.
The Alabama resolution could kindle initiatives from officials, attorneys, and private litigators in these states to expand the application of criminal laws beyond limiting access to abortion. The action could extend to medical care for pregnancy loss, IVF, and select forms of contraception.
A Senate Judiciary Committee hearing held on April 26 raised concerns over the impact on reproductive health choices, especially IVF access, in light of the realities in the states with fetal personhood laws.
Employers need to scrutinize the intricacies of their health plan options in light of the legal consequences sprouting from the Alabama ruling, as theories of accomplice liability connected to abortion may potentially be mirrored in the IVF context.
Strategic planning is also required in positioning genetic material in correlation with health plans, since some states might necessitate storage and maintenance of all viable embryos, even after completion of IVF treatments. A Louisiana law, for instance, prohibits the intentional destruction of a “viable in vitro fertilized human ovum,” a costly prospect for companies whose benefit plans cover IVF.
Employers must remain vigilant of upcoming legislature drafts, state enforcement actions, and review their health plan policies rigorously to warrant compliance. Trends in various states suggest closer tracking of developments, with one such example being a Florida Supreme Court ruling that allowed a 6-week abortion ban.
With recent legal developments as mere precursors of a larger scheme, employers have to anticipate the long-term implications. The political response to the Alabama decision, swift as it was, is equally telling. With the growing push for expansive fetal personhood, the political unpopularity of these developments could curb its expansion during the election season in 2024. However, as past trends have shown, the unpopularity of fetal personhood may not halt its rise.
To read more, the full judgment of the Alabama case, LePage v. Ctr. for Reprod. Med. PC, has been published.