As was the case with the recent turmoil over the personhood of unborn children in Alabama. Roe vs. Wade was overturned in 2022. Employers are once again unsure of how the ever-changing reproductive rights landscape will impact their operations, employees, and legal risks.
The events in Alabama have opened a new legal debate that also affects employee health care provisions. In February, the Alabama Supreme Court suspended IVF treatment in the state, ruling that frozen embryos have the same rights as humans. This decision highlights how existing and proposed laws in several states may be interpreted expansively by state courts to further develop the concept of fetal personhood.
IVF care resumed in Alabama after the Alabama Legislature exempted IVF providers from liability, and this ruling demonstrates the power of these laws in regulating reproductive health care.
Following the Supreme Court's decision, Dobbs v. Jackson Women's Health Organizationobsolete Roe vs. Wadefetal personhood, the idea that a fetus is a legal person with the same rights as a child, quickly went from a marginal theory to a mainstream project.
Currently, state laws in at least 11 states define “person” so broadly that reproductive rights activists warn that it could definitely be interpreted to confer rights on unborn children. . For example, Missouri law requires that “unborn children at all stages of development” be afforded “all the rights, privileges, and immunities available to other persons, citizens, and residents” of the state. An additional 14 states are considering personality laws, demonstrating the wide range of groups pushing for these changes.
The Alabama decision could give prosecutors, state officials, and private litigants in the 11 states with fetal personality laws a chance to take advantage of the potential to expand the reach of their state criminal laws. They could move to restrict access to abortion care, as well as medical care for miscarriage, in vitro fertilization, and even some forms of contraception.
Although the fetal personhood bill does not yet pose a direct threat to IVF care (outside of Alabama) or contraception, the Alabama case makes clear that such a threat could develop quickly. ing. These issues were raised at a Senate Judiciary Committee hearing on April 26, during which witnesses discussed the impact on reproductive health choices, particularly access to IVF, in the 11 states that have enacted fetal personhood laws. expressed concern.
The Alabama decision emphasizes that the doctrine of accomplice liability that applies to abortion applies equally to the IVF context and can impose liability on employers, so employers Health insurance plan options should be carefully considered.
Activist state attorneys general may argue that companies with medical plans that cover IVF procedures are aiding and abetting the destruction of embryos, which is often done as part of the IVF process. This mimics claims made by some state attorneys general about employer liability when companies began covering the travel costs of employees forced to leave their home states to obtain abortion care. ing.
Employers should also carefully consider the location of genetic material from a health planning perspective. Certain states may require the preservation and maintenance of all viable embryos, either explicitly or by virtue of personality laws, even after IVF treatment is complete.
For example, Louisiana law makes it illegal to “deliberately” destroy “viable in vitro fertilized human eggs,” which the law defines as a “legal entity.” If your company's benefits plan covers IVF, it can have a significant impact on costs.
Employers should continue to monitor proposed legislation and state enforcement actions and closely review health plan policies to ensure compliance. Measures to protect IVF have been proposed at the national level, and the topic has been a major issue in Congressional campaigns, but no federal legislation has gained attention. This indicates that reproductive rights will likely continue to be regulated by a patchwork of state laws.
Employers should also monitor court developments. On April 1, the Florida Supreme Court allowed a six-week abortion ban to go into effect, saying it violated privacy protections and paved the way for the state to further intervene in IVF and contraceptive use.
Despite the activity of recent weeks, it is important to remember that the Fetal Personality Movement is only the beginning of a long-term project.rear eggSimilar gradual layoffs led to its repeal nearly 50 years after the law was enacted.
The political implications of Alabama's decision are as noteworthy as the decision itself. The backlash was swift. Within weeks of the Alabama Supreme Court's decision, the state Legislature passed a bill granting civil and criminal immunity for IVF to service providers and recipients. Within an hour after it was passed by the Alabama Senate, the governor signed it into law.
Despite swift action by state lawmakers, on March 26, reproductive rights Democrat Marilyn Lands won a special election, flipping her seat in the Alabama House of Representatives. Her Lands' success in the polls is widely thought to be due to the court's decision.
Concerted efforts are underway to expand fetal personhood, but so far they have proven electorally unpopular. This is expected to limit expansion during the 2024 election season.
But just as abortion regulations have expanded at the state level, the political unpopularity of fetal personhood may not stop the increase, despite polls showing strong support for abortion. unknown.
The case is LePage v. Ctr. For reprod. medicine. Alabama PC, No. SC-2022-0515, 2/16/24.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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Katie Johnson is a partner at Jenner & Block in Washington, DC
Illyana Green and Mary Marshall are employees of Jenner & Block in Washington, DC
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