The Alabama Pause
For many, the Alabama Supreme Court’s decision to restrict IVF came as a shock. For those on the ground, and those in the data, the writing was on the wall.
Robin Marty anticipated the likelihood of post-Roe America five years ago. Then, six months ahead of the official Supreme Court opinion, she “uprooted her husband, three children and two cats” from their longtime home, moving across the country to Tuscaloosa, Alabama. She is now Executive Director of the West Alabama Women’s Center, a free and sliding scale reproductive health care clinic that is a bastion to many of the most vulnerable pregnant people in the United States.
That is the kind of person Robin is: purposeful and passionate, and above all, prescient. I met her a few months ago, fresh off a 21-hour train ride from Tuscaloosa to Washington D.C.—a transportation choice she’d made to scrimp and save for more important things, like keeping the doors open at her clinic.
In front of business and policy stalwarts, Robin’s description of the plight of her community was arresting. “As the Milken Institute has pointed out in a recent report, at this point, one in every 100 Black women who give birth in Alabama are going to die. So for us, that means of the patients who come through, we can guarantee that probably one patient every year is going to die. Our job is to stop that,” she told us.
On the ground in Alabama
Tuscaloosa is a difficult place for families to thrive. Nearly a quarter of the population falls below the poverty level, and while half the population identifies as Black, there are no Black Ob/Gyns in the city. Across the state, conditions are hardly better. More than one in three Alabama counties are classified as maternal care deserts. Preterm birth rates and infant mortality rates both outpace national averages. Every year the March of Dimes gives each state a report card. Last year, Alabama earned an F.
Since the fall of Roe, conditions have become predictably worse. Alabama enforced a total abortion ban, with no exceptions for rape or incest. With few Ob/Gyns willing to practice in restrictive and legally perilous environments, access to all forms of reproductive health care is declining. New research shows that, post-Dobbs, the number of Ob/Gyn residency applications to abortion-restrictive states plummeted.
And now, in the latest blow, Alabama has become a more challenging place to become pregnant. On February 16, Alabama’s highest court ruled that embryos should be treated as “extrauterine children'' under state law, opening the door for anyone who discards said embryos to be held for wrongful death. In quick succession, three of Alabama’s seven fertility clinics halted treatment as they paused to consider a path forward.
Biology is inefficient
Discarding embryos is not only inherent to the process of fertility treatment–it is also a byproduct of life itself. According to my colleague Dr. Wael Salem, Maven Clinic’s Medical Director of Fertility, “the biology of reproduction is inherently inefficient.” Not every sperm fertilizes an egg, not every embryo implants, not every pregnancy develops or results in a live birth.
Where the female body naturally produces just one egg a month, IVF supercharges the mechanics of fertility by collecting multiple eggs—(think 9-12) and individually pairing them with sperm in a petri dish. As technology has advanced, the rate of healthy embryos that are successfully transferred to the uterus has improved. Embryo wastage decreased from 83% in 2004 to 76% in 2013. But still, IVF is a game of numbers. It increases the probability of life, but it doesn’t guarantee it.
“Not all the eggs will fertilize, and only some of those that fertilize will convert into embryos five or six days later. And what about those eggs that fertilize, but don't get all the way to the embryo stage? Or what about those embryos that do get to the embryo stage, and when we choose to do genetic testing on them, find that scientifically, we know they are not compatible with life? This gray zone has created chaos for IVF centers,” Dr. Salem explained.
With each round of IVF, patients have the option to discard leftover embryos, freeze them, or donate them. By creating criminal liability for the viability of these embryos, this ruling jeopardizes all three of these choices for Alabama patients. It traps them in a maze of dead ends.
As with all of reproductive health care, those who were already the most vulnerable are also the most impacted by barriers to care. And the barriers were already significant. The supply of reproductive endocrinologists who provide IVF services is much smaller than the demand. The average IVF round costs more than most Americans keep in their savings accounts. Black and Latina women are more likely to be infertile, and also less likely to seek fertility treatment or be referred for treatment.
The politics and the populace
In the eyes of the People, the latest restriction to IVF access was unacceptable. Almost immediately Alabama legislators moved to introduce legislation protecting IVF treatment. In fact, in the days since the ruling, advocates across both sides of the aisle, up and down the ticket, have crept out of the woodwork to support fertility treatment. Alabama’s attorney general even vowed not to prosecute IVF patients.
My friend Glenn Cohen, a Harvard Law School professor, foresaw the distinction in the politics of abortion and the politics of IVF, even as the legal line remains blurrier. At the end of 2022, he wrote: “It was tempting to think one’s position in the ‘last war’ would determine one’s position on embryo destruction, but these questions are more open – not just in the possible positions one takes but in the terms of the debate itself.” Similar to public sentiment on IVF, recent data shows that Americans remain equally committed to contraception access, another right that in a post-Roe world stands on legally perilous ground.
At a fundamental level, the overwhelming majority of Americans are fiercely protective over their right to have sex without procreation–as well as their right to procreate without having sex.
With the political debates on reproductive access far from settled, and the law mercurial, the private sector is positioned to at least cushion some of the impacts. Nearly half of all large employers currently offer health plans that cover IVF. Private companies, particularly those with distributed workforces, are compelled to design health care benefits with as much geographic parity as possible. Ideally an employee in Alabama should have access to the same services as an employee in Illinois. Under the current circumstances, employers have stood up travel benefits and elastic reimbursement allowances to ensure their people at least have the means to get the care they need.
In the recent weeks, our team at Maven has been in close communication with both our members and our employer clients. In addition to enabling and administering these benefits, we’ve continued to connect members with care advocates and health care providers who are helping them understand the evolving landscape, the clinical implications of the pause in services, and their treatment options. Crucially, we are also finding that over 40% of Maven fertility members are using our platform for emotional support and mental wellness.
The Alabama pause on IVF may be temporary but as Robin continues to point out, the broader set of reproductive health needs for women and families remain acutely unmet. They need our compassion and care more than ever. They deserve the devotion of a 21-hour train ride from D.C. to Tuscaloosa.
This week my team is reading, considering, and building with those on the frontlines of Alabama top of mind. Here are a few organizations we’re following:
The Yellowhammer Fund is a reproductive justice organization dedicated to ensuring all people have the ability to decide when and how to build their families. They ship free emergency contraception to residents in the South; offer material support for families living in poverty in Alabama; and work to address period poverty across the state.
The Knights and Orchids Society provides a spectrum of health and wellness services, including STI testing, care coordination, community groups, and housing support to LGBT people across Alabama and the South.
And, in related news, we’re turning paid subscriptions on at the Preprint! Every newsletter will remain free, but if you choose to subscribe, we will donate your fee to a cause in women’s and family health. As of now, all donations will be going to West Alabama Women’s Center. They connect families across Alabama with pregnancy confirmation and prenatal care; contraception; telehealth; and low-cost primary care. Their work is lifesaving and life-giving.