Louisiana's law, which contains no exceptions for victims of rape and incest, has taken effect twice and been blocked twice in the three weeks since the Supreme Court ended a half-century right to an abortion. A court hearing Monday, July 18, will determine what happens next.
Reproductive endocrinologists in Louisiana say they are cautiously optimistic about their day-to-day work under the state's trigger law as written, although they do have concerns about how it may be interpreted by lawyers and judges.
The intention of Louisiana's trigger law was strictly to prevent elective termination of pregnancy, according to Dr. John Storment, a Lafayette fertility specialist. It's possible, he said, for the law to be interpreted in a way that threatens the use of some contraceptives, such as copper IUDs — intrauterine devices that can prevent implantation of fertilized eggs.
"The problem with all of these bills and all of these trigger laws and all of these new laws that are coming up around the country will really be the unintended consequences," Storment said. "So when an attorney or a judge interprets that law differently than what was intended, then you could have some fallout, but that's kind of a bunch of what-if scenarios."
Protecting Embryos
"The definitions of 'fertilization' and 'unborn human being' could theoretically apply to the process of creating in vitro embryos, but the law only criminalizes activities performed upon a pregnant woman with the specific intent of causing or abetting the termination," the organization said of Louisiana in a report on how state trigger laws could potentially impact reproductive medicine.
Viable embryos — the stage of development just after fertilization — have been protected by law for decades in Louisiana.
"We have some of the most protective laws for our precious embryos," said Dr. Jay Huber, a New Orleans fertility specialist. "We're very protective of our embryos, and it's been that way because of how the law was written in the '80s in the state of Louisiana. So currently, what's happening on a national level and then our current trigger law in Louisiana does not impact what we're able to do in fertility practice."
Although the state has long given personhood status to embryos, Louisiana has also allowed embryos to be discarded if they were not viable.
Dr. Neil Chappell, a Baton Rouge fertility specialist, said he doesn't see that changing under the current law, although he noted it could be interpreted differently by an attorney or judge.
"If they're not viable, they're not living. They're just tissue," Chappell said. "Like if you were to have your gallbladder taken out, the gallbladder is not viable anymore. The gallbladder is discarded."
In May, Louisiana legislators stripped the parts of a bill that could have sent women to prison for terminating a pregnancy or taking certain kinds of birth control. Fertility specialists were among those who spoke out against House Bill 813, which said life and legal protections begin at the moment of conception. That definition opened the possibility of jail time for doctors, nurses and lab technicians who handled a fertilized egg that did not, ultimately, lead to a viable pregnancy.
"The problem with that bill is criminal laws," Storment said. "We don't have a lot of laws — or any laws — that criminalize medical treatment that put doctors and nurses and lab people in prison for an error or something that can occur naturally."
Chappell said he worries that someone will get hurt under the current law — not necessarily because of how it's written but because of how it may be interpreted at a time when the stakes are high for anti-abortion and pro-abortion rights advocates.
"Either a doctor is going to be incorrectly sued, or a patient is going to be incorrectly withheld treatment because of a concern for or their interpretation of the law," Chappell said. "Either a patient's going to be hurt or a doctor is going to be dragged through the mud because of some overzealous interpretation of this movement."
Medical Advancements
Fertility treatments have come a long way in recent years.
For women undergoing IVF, health care providers have become much better at developing and selecting the best embryos in a lab setting. Just one embryo at a time is typically implanted in the womb instead of multiple at once, as in years past, because of medical advancements. That means it is no longer as common for a woman undergoing fertility treatments to have a high-order multiple pregnancy in which four or five embryos implant, resulting in a high-risk situation.
Although still rare, a woman who takes ovulation medication is more likely to experience a high-order multiple pregnancy because of the increased likelihood that she will release multiple eggs at once that can then be fertilized by sperm during artificial insemination.
With four or five implanted embryos, it becomes more likely that a pregnancy won't result in the birth of a single healthy baby. Women in such a situation are generally referred to a high-risk specialist who might recommend selective reduction in an effort to increase the likelihood of one or two embryos thriving.
"Some patients choose to terminate down to two or one in order to save the whole pregnancy. That procedure is no longer allowed. The procedure can't be done in Texas, can't be done in Mississippi and all the surrounding states," Storment said.
"The reason why it's not being talked about much is because it's so rare that we have a quadruple- or quintuple-type pregnancy, so it doesn't affect many people. But this is a real issue. And it's a real serious consequence of fertility treatment that we try to avoid, but you can't avoid it sometimes."
Storment said it's been years since he's had such a high-risk pregnancy at his clinic.
Should he find himself in a situation where he needed to refer a patient to a high-risk doctor because of multiple pregnancies, Storment said he would do it without worrying about potential legal consequences.
"If my referral got me put in jail, then so be it," Storment said. "I think that the reality is that this patient that I'm describing is trying to save her pregnancy so that she can be a parent. And I'm not necessarily distinguishing her from the person wanting elective termination, but in my situation, I brought her through all the treatment. I can't abandon her at this stage and just say, 'You're on your own because I don't want to go to jail.' I couldn't abandon my patient in that way. I would still give her the advice that I would give otherwise."
Nothing Changed — Yet
Louisiana Right to Life, an anti-abortion activist group, is neutral on fertility practices that can result unviable embryos or pregnancy that may require selective reduction, according to organization spokesperson Sarah Zagorski.
"Our organization works to end life-destroying action," Zagorski said. "So that's why, of course, we hope in the future that they could limit the amount of embryos to the amount a woman plans to carry."
The anti-abortion group did not, however, support HB813 or the possibility of jail time for women who receive an abortion.
"We opposed it 100 percent," Zagorski said. "We opposed it because we don't believe women should be treated as criminals and think that women are always victims too. We saw it as an antithesis to the pro-life movement altogether."
Huber, the New Orleans fertility specialist, said his work has not changed as a result of recent events.
"We appreciate and applaud the respect that the embryos are given," Huber said. "And I don't have any trepidation of practicing here in Louisiana because really there has been no change from any reproductive medicine perspective and these current events. We have been very protective of embryos since the advent of advanced reproductive technology here in Louisiana."
He also does not anticipate unintended consequences of the current trigger law or any proposed legislation that may further reduce access to abortion services in Louisiana.
"I think that we live in a state that, for certain aspects of medicine, one could consider them to be fairly conservative but realistic in discussing what I would consider to be pro-life health care to help people build their families," Huber said.
Government Involvement in Health Care
Patients and those considering fertility treatment in Louisiana have reached out to Storment, Chappell and Huber with questions about how the overturning of Roe v. Wade might impact their options.
"They're concerned about some of the lack of clarity and don't want to jump to conclusions," Huber said. "We've had a number of patients reach out to us via social media or in person or by phone just to try and gather some clarity on how the overturning of Roe v. Wade or the trigger law in Louisiana would impact their fertility care."
Doctors have been assuring their patients that as the law currently stands, there will be little, if any, impact on those seeking fertility treatments. The same is not true for women seeking to terminate a pregnancy.
Storment said he would have liked to have seen more restrictions on the gestational age at which abortions are allowed instead of the right to abortion being taken away altogether at a federal level.
"This is not going to affect the rich high school girl who gets pregnant. Her parents are just going to pay for her to fly to New York and have a termination, and they're not going to tell anyone about it," Storment said. "It's the poor that are going to suffer, the people who can't afford to fly to New York and have the termination of pregnancy. And I think that the problem we're in right now is that nobody has compromised. This is no different than gun control. It's the exact same thing. Everybody has an opinion and then nobody's willing to compromise and come to the middle."
At the end of the day, Storment said he is not very concerned with how the recent Supreme Court decision will affect his day-to-day practice as a fertility specialist. He's more concerned with the government's involvement in health care.
"It bothers me because it's getting in the way of a doctor-patient relationship," Storment said. "That sort of intervention is what I have a problem with."
Chappell, the Baton Rouge specialist, agreed.
"Whenever you're trying to insert someone between the patient and provider, you're interrupting a very, very sacred bond, right?" Chappell said. "If someone's coming to a doctor in a vulnerable position and you're inserting restrictions or algorithms or legislation or things to disrupt, that increases the friction in that interaction and makes it more difficult for a patient to be open and be vulnerable and be healthy. The patient needs to share what's going on, and if they're afraid because of ignorance or prejudice or restriction or other things like that, it makes it more difficult to reach that patient and be able to touch them on a level that they need."
(c)2022 The Advocate, Baton Rouge, La. Distributed by Tribune Content Agency, LLC.
