Going Public – The Future of ART Access Post-Dobbs
By Katherine Kraschel
The loss in Dobbs and the bleak outlook for abortion rights within the federal courts may afford advocates a unique opportunity to fully adopt a reproductive justice framework and apply it to access to fertility care, as other contributors to this symposium have argued.
This article outlines specific strategies for blue states eager to stake a claim in the reproductive justice movement to consider.
It’s Time to Prioritize Public Insurance Coverage for Fertility Care
Fertility care is essential and yet often out of reach for BIPOC and LGBTQ+ people. Infertility disproportionately burdens Black, Indigenous, and people of color in the United States; they are more likely to be infertile, yet less likely to access care, and they have worse outcomes when they do access care. Environmental racism, institutionalized racism in medicine, and cultural norms around infertility are a few of the many factors that drive these disparities.
Another key driver of these disparities is the exorbitant cost of fertility care, and specifically in vitro fertilization (IVF). According to the American Society of Reproductive Medicine the average cost of a single cycle of IVF is $12,550. IVF’s inaccessibility is not a new revelation. As infertility has become a recognized medical condition worthy of insurance coverage over the past twenty years, some of the country’s largest employers have offered generous benefits to many employees, and 13 states have enacted laws that require some types of private insurers to cover treatment for people diagnosed medically infertile. As Professors Blake and McCuskey point out in this symposium, state insurance mandates have limited impact since they don’t apply to the largest employers.
To date, state laws requiring insurance coverage for fertility care have focused on private insurance and people who experience medical infertility. They have centered the experiences of white, cisgender, straight, upper to middle class people, and left behind those who rely on public insurance programs as well as members of the LGBTQ+ community by requiring a medical diagnosis defined in reference to coital reproduction.
The consequences stemming from these policy decisions are disproportionately borne by BIPOC and LGBTQ+ individuals. A recent study my co-authors and I published in the American Journal of Obstetrics and Gynecology shows how state insurance mandates that require only private insurers to cover infertility treatment disproportionately exclude BIPOC people and may, in fact, exacerbate racial disparities in access to care. For many this is not a shocking result, given that BIPOC are disproportionately represented in state Medicaid programs, so advocacy that prioritizes private insurance deprioritizes access for BIPOC. No similar inference is needed to see that requiring a medical diagnosis of infertility as defined by attempting to become pregnant for a specified period of time through coital intercourse categorically excludes single and many LGBTQ+ people.
Legislation heading to the floor of the Connecticut General Assembly attempts to address these disparities. House Bill 6617 would revise the state’s current infertility insurance mandate to include the state’s Medicaid program and provide access for LGBTQ+ and single people. The proposed bill would make Connecticut the first state to provide comprehensive fertility care through its Medicaid program and to require insurers (including Medicaid) to offer coverage to single and LGBTQ+ people without requiring a medical diagnosis.
In this way, Connecticut can serve as a model of Post-Roe fertility access advocacy. Legislators in Connecticut are proud advocates who are keen to support reproductive rights and LGBTQ+ equality, and House Bill 6617 has provided them with the opportunity to do just that. Equally important, Connecticut has strong laws regarding abortion access, including Medicaid coverage and a provider shield law.
Dobbs Creates a Unique Moment of Political Will to Embrace Reproductive Justice Advocacy
The Supreme Court’s decision in Dobbs to erase the Constitutionally protected right to abortion is a profound loss with devastating and wide ranging consequences disproportionately borne by Black women. Nevertheless, losing Roe counterintuitively represents an opportunity to redefine the contours of advocacy regarding reproduction, deploy it in different settings, and mobilize popular support.
As other contributors to this symposium have argued here and elsewhere, Roe has long been inadequate; its genesis in a right to privacy presupposed an individual choice that was illusory, particularly to BIPOC women.
In some ways, protecting an existing right to abortion has constrained advocates to work within a framework of “negative rights” when it comes to policy debates regarding reproduction. Even outside the courtroom, advocates understandably resisted arguing against the reasoning that served as a floor for the country’s right to abortion, and legislators leaned into notions of reproductive freedom as defined by courts.
There may be no better demonstration of Roe’s hypothetical promise than the Hyde Amendment. Since its first passage in 1976, the Hyde Amendment has banned federal Medicaid funding for abortion with narrow exceptions, and it withstood Constitutional challenge by a Court that cited Roe as controlling authority. In this way, Roe’s demise presents freedom to redefine the contours of reproductive justice advocacy. Mistakes like Hyde must be avoided in an RJ approach to fertility care advocacy.
The persisting discordance between public opinion in favor of abortion access and the Supreme Court’s decision in Dobbs is a testament to the limitations of litigation as a strategy and the importance of other branches and other levels of government – particularly state legislatures that are charged with overseeing their Medicaid programs. Moreover, particularly in blue and purple states, national and grassroots organizations should capitalize on mobilizing public support and political will to take up the cause of reproductive justice in the wake of Dobbs. They can leverage this support to adopt tactics and realize gains that may not have been tenable without the massive public attention to issues of reproduction and the law.
In response to this new RJ vision for ART access post-Dobbs, some could point to the fact that after Dobbs conservative states may be mobilizing to limit access to assisted reproduction by controlling embryo disposition. Anti-abortion strategists have been scrappy and unrelenting, and they played a long game to secure their desired outcome in Dobbs. However, it’s notable that, to date, no state has banned or criminalized IVF or embryo destruction or put a new restriction in place. What might be a future strategy in some, but not all, states should not be an impediment to zealous advocacy and an ambitious vision for what the future could hold for access to ART.
