Author: Sarah Aber

Embryos Are Children: What Does This Mean For Reproductive Rights?

In a ruling on February 16th, 2024, the Alabama Supreme Court declared that frozen embryos outside of the womb are classified as children. There are a few steps to in vitro fertilization (IVF); hormones are taken for the egg retrieval process, and then mature eggs are collected from the ovaries and fertilized in a lab with sperm. One or more of the fertilized embryos are then inserted into the uterus. Many complications can arise from inserting multiple fertilized embryos into the uterus, and since an IVF retrieval process will typically produce additional embryos, it is standard procedure to freeze the embryos not used in the current IVF cycle and keep them preserved in the fertility clinic. By freezing the extra embryos, couples can have additional IVF cycles without the strains that come with egg retrieval, which can include surgeries and hormonal treatments.

In the current case, three couples went through a standard IVF treatment and kept their extra fertilized embryos cryo-preserved at the fertility clinic, which resided within a hospital. Unfortunately, those embryos were destroyed when a hospital patient entered the cryo-preservation area, opened a tank where the frozen embryos were stored, and dropped them to the ground.

The couples sued under the Wrongful Death of a Minor Act. For the court to rule on the matter and determine if there is proper standing under the Act, the court first had to look to whether the embryos were considered unborn children. In analyzing the statute, the Alabama Supreme Court determined that fertilized embryos qualify as children, as nothing in the Act specified unborn children must be in utero. So, the Act “applies on its face to all unborn children, without limitation.” The Court concluded the fertilized embryos fall within the definition of children because “all parties to these cases, like all members of this Court, agree that an unborn child is a genetically unique human being whose life begins at fertilization and ends at death.” Dobbs v. Jackson Women’s Health Organization is noted as a ruling factor in the case, with the court stressing that unborn fetuses were widely recognized as living persons with rights and interests dating as far back as the 18th century.  

The ruling poses serious risks to not only those who rely on IVF treatments, but for general family planning, as the holding implies that life beings at fertilization. Holding embryos as children creates a slippery slope where individuals can be held civilly and possibly criminally liable for destroying embryos.

IVF clinics in Alabama are already closing with concerns the clinics will be penalized, or individual embryologists, for what they deem safe to freeze or in turn discard. With worry over IVF in the state, both the Alabama House and Senate rallied together and voted to approve legal protections for providers of IVF. The bill would extend civil and criminal immunity to providers of IVF services. While this creates legislature specifically for IVF providers, nothing has been discussed in relation to family planning measures. This poses a serious question: how far can this holding go in terms of family planning, birth control, and autonomy of one’s own body?

In relation to IVF, even individuals who choose to discard their frozen embryos could be liable for killing a child, in theory. What if a couple decides they no longer want to continue keeping the embryos viable? What if one parent wants to unfreeze the embryo and the other doesn’t? If the embryos are never destroyed, but additionally are never given the opportunity to be birthed, does this constitute as the embryos essentially dying? These questions just pose the beginning of larger disputes regarding parental rights of fertilized embryos.

Outside of IVF, emergency contraceptives like Plan B contain a hormone that can keep a fertilized egg from implanting in the uterus. With this ruling, emergency contraceptives can be deemed as killing a child, and those that take it may be at risk for civil or criminal penalties. Additionally, after Dobbs, Alabama reinstated a total abortion ban. However, if a mother miscarries, she could be liable for the death of her own child. While it may seem severe, the door is now open for courts to rule in this manner. 

A Hopeful Outlook to Increased Domestic Violence Resources Through Federal Funding

            Between one to three million cases of domestic violence are reported nationally every year; however, there are an estimated ten million victims when including unreported cases. Historically, domestic violence was considered a familial matter that should be dealt with in the home, not in the courtroom. Slowly but steadily, the Battered Women’s Movement created the beginning of domestic and family violence concerns in the legal sphere. The movement, with a slogan of “we will not be beaten,” sought to raise public awareness of domestic violence and advocate for better policy. The movement focused on battered women’s syndrome as a way to psychologically describe the effect of long-term trauma in abusive relationships, and was used as an expanded self-defense argument in court. Continuing into the 1960’s, the first cases of domestic violence were transferred from criminal courts into family courts in New York. With the prominence of domestic violence as a national concern, the advocates began to debate the best approach to minimize the violence.

            The Victim of Crime Act (VOCA), passed by Congress in 1984 and amended in 1988, was established to provide funding to states for victim assistance and compensation programs for victims of violent crimes. However, it was not until 1994 that the first federal law was created directed towards domestic violence. The Violence Against Women’s Act (VAWA), which recognized domestic violence and sexual assault as a national crime, highlighted that the creation of federal law can help relieve state and local criminal justice systems that are overburdened with family violence matters through much needed funding and large scale resources.

In further effort to decrease violence, on March 20, 2023, the Department of Health and Human Services (DHHS) announced a new office under the Administration for Children and Families (ACF): the Office of Family Violence Prevention and Services (OFVPS). The office was created with the goal of prioritizing domestic violence prevention and educating the intersections of preventative work throughout the federal government. OFVPS has 3 main goals: to develop an AFC-wide action plan regarding domestic violence within social service programs, coordinate and collaborate efforts with agency partners, and prioritize continued implementation of appropriations.

Most notably under this department, Representative Lucy McBath reintroduced the Family Violence Prevention and Services Improvement Act (FVPSA), which will reauthorize and expand funding for survivor support programs and preventative family violence programs.

FVPSA was originally introduced in 1984 and was again reauthorized on April 13, 2023. The FVPSA is now the primary stream of funding for emergency shelters and victim assistance programs for domestic violence survivors and their children. Compared to VOCA and VAWA, it is the only federal source that is specifically dedicated to funding domestic violence services. The domestic violence programs provide survivors with vital resources such as shelters, safety planning, crisis counseling, legal advocacy routes, and other support services to leave their abusive partners. 

Funding under VAWA, VOCA, and FVPSA has shown to improve nationwide responses to domestic violence and other forms of sexual violence at both the federal, state, and local level.

FVPSA alone currently provides to over 1.3 million victims and their families every year. Through this Act, funding for domestic violence has been federally increased to roughly two hundred and fifty million dollars. Culturally specific programs will be expanded for larger access, and in combination with the VAWA Reauthorization Act of 2022, Indian Tribes have a stronger capacity to exercise their sovereignty over cases of domestic violence within tribal land. However, despite these resources, domestic violence remains rampant.

Domestic violence is a silent epidemic in America, and since the COVID-19 pandemic, demand for domestic violence services has only increased. Unfortunately, domestic and sexual violence services face continual budget deficiencies with the continual increasing demand. Federal funding should be increased and allocated towards preventative measures to decrease victimization, in addition to the continual focus on remedial support for victims and their families. As of May 25, 2023, the Biden Administration has released a national strategy plan to end gender-based violence. This plan includes elevating the office FVPS, establishing new FVPSA grants, and allocating increased funds to Department of Justice VAWA programs. If continued into the next administration, federal funding shows a positive step towards combatting domestic violence.

Threatening Affordable Access to Abortion: Mifepristone, The “Abortion Pill”

On January 3, 2023, the U.S. Food and Drug Administration (FDA) updated its risk evaluation and mitigation strategy (REMS) for reproductive health relating to “the abortion pill,” mifepristone. Mifepristone is a pill, used in combination with misoprostol, to terminate intrauterine pregnancies no later than 10 weeks past the individual’s last menstrual period. Additionally, it may be used for early-stage miscarriage management, and management of 2nd and 3rd trimester pregnancies where the fetus is no longer viable and has died before birth.

In 2011, the FDA implemented the Mifepristone REMS Program to place restrictions on the drug’s distribution and use. Specifically, it implemented an in-person dispensing requirement where the drug may only be dispensed in a clinic, medical office, or hospital through direct supervision of a certified clinician. This prohibited mifepristone from being sold in retail pharmacies or through the mail. The drug’s restrictions were criticized for creating barriers to patient access for medicated early-stage abortions and management of pregnancy loss. Additionally, those that opposed the restrictions claimed its implementation disproportionately harmed minority groups and communities that faced structural barriers to reproductive care. This accelerated throughout the COVID-19 pandemic, and advocacy efforts spearheaded by the American College of Obstetricians and Gynecologists pushed the FDA to reform the REMS program.

In 2021, the FDA completed a review of the REMS Program and set to modify the restrictions to help improve patient access and create efficiencies in health care delivery. Implementations of the Program’s modifications were halted until the FDA approved mifepristone’s updated prescription information by their manufacturer, resulting in the implementations officially going into effect on January 3, 2023. The FDA’s update removed the in-person dispensing requirement and a new pharmacy certification process was added that allows certain retail pharmacies to dispense mifepristone directly to patients who have a prescription. Additionally, given the impact of the Dobbs decision, this update will affect clinic practices based on the abortion laws and regulations of the state that the practices reside in.

Following the FDA’s updated policy, stores like Walgreen and CVS planned to offer mifepristone through their pharmacies in the states that legally allow abortions. However, on March 3, 2023, Walgreens publicly stated it would not be dispensing mifepristone in 20 states after being threatened by public officials. Headed by Missouri Attorney General Andrew Bailey with other attorney generals from Republican run states, a warning letter was issued to CVS and Walgreens on February 1, 2023. The letter alleged abortion pills sold through the mail would be federally illegal based on the Comstock Act, claiming the Act includes language that prohibits the mailing of articles designed to prevent conception or induce an abortion.

In early January of 2023, the Department of Justice (DOJ) noted that the Comstock Act does not prohibit abortion pills being mailed when those sending the pills lack intent that the drugs will be used for illegal purposes; however, Bailey argued against the DOJ and claimed the text of the Act is what governs, not “the Biden administration’s view.” Bailey further threatened CVS and Walgreens with civil litigation through either state attorneys or private citizens.

Walgreen’s announcement affects states where medication for abortions is legal, such as Alaska, Iowa, Kansas, and Montana. In a statement, Walgreens specified that once it was certified by the FDA to sell the abortion pill, the company will dispense the drug complaint to state and federal laws. The threat to selling mifepristone has opened a larger question about state authority in regulating FDA approved drugs and medicated abortion access. Since Walgreen’s announcement, activists have pushed to boycott Walgreens. Currently, there are 2 lawsuits arguing that states do not have the authority to regulate FDA approved drugs; one targeting a state’s restriction on abortion pills, and the other challenging West Virginia’s state abortion ban. If the court rules in favor of the plaintiffs in these cases there may be grounds to claim that FDA policy trumps state law on abortions, but more time is needed to determine the outcome of bans on the abortion pill through state and federal action.

Effects of Domestic Violence Mandatory Reporting in Health Care

While research and education regarding domestic violence and abuse continues to grow, domestic violence remains a prevalent issue accounting for roughly ten million victims per year in the United States. National statistics show that on average, twenty people per minute are victimized by domestic violence, with roughly one in four women and one in nine men suffering either physical or mental abuse by their partner. Additionally, one in four women and one in seven men are abused through severe physical violence such as beating, burning, or strangulation throughout their lifetime by an intimate partner. While abused individuals are at risk for various physical, mental, sexual, reproductive, and substance abuse issues, only thirty four percent of victims receive medical care for their injuries. 

There are social stigmas surrounding disclosure of abuse from victims for fear of additional harm by their abuser and judgment by society, making domestic violence hard to measure. Previous studies have found that forty four percent of victims have talked to someone about their abuse, with only thirty seven percent of those individuals disclosing their abuse to a healthcare provider. 

Many state and federal laws have required individuals working in a professional capacity to report signs of possible abuse regardless of the patient’s disclosure. Majority of these statutes specify health professionals such as therapists, nurses, and doctors as mandated reporters for domestic violence. State legislation typically falls into four categories: requiring reporting of injuries caused by weapons; reporting injuries that are caused as a result of violence, through non-accidental means, or in violation of criminal law; specifically addressing domestic violence reporting; or there is no general requirement related to mandatory reporting. However, with difficulty around accurately measuring rates of domestic abuse, it is hard to discern if areas with mandated reporting laws truly assist victims, or if they create an additional risk and barrier to those that have not personally disclosed their abuse. 

Two large discussions on mandatory reporting for health professionals include the effectiveness of reporting in maintaining victim’s safety and the victim’s rights to medical privacy. The Health Insurance Portability and Accountability Act of 1996 (HIPAA) addresses privacy protection issues between health care professionals and their patients. However, when health professionals observe clear signs of abuse, especially when they feel the patient is in danger, abuse must be reported. Regardless of a victim’s request to remain confidential, HIPAA does not cover protected health information if a crime has occurred. HIPPA does not prohibit law enforcement officers from gaining access to patients who were victims of a crime and allows officers to obtain information directly from a patient if it relates to a crime.

Many patient visits of domestic abuse victims do not meet the standards for mandatory reporting. For instance, visits related to extreme harm like stab wounds or gun shots would require a report. However, visits associated with abuse, like chronic health conditions of memory loss or depression, would not constitute a report. During these appointments, patients may describe and disclose forms of domestic abuse, but depending on local laws, health providers may not be required to disclose the abuse that is reported to them.

Despite these mandates, one study notes that most primary care physicians do not routinely screen for signs of abuse. Though screening is separate from reporting, two thirds of women who have been abused said they would have wanted their health professional to ask about domestic abuse . Contrastingly, with various state laws, there is a misconception as to what health professionals must report. Particularly with minority or undocumented victims, individuals avoid seeking medical care because they fear the abuser will find out or that deportation agencies will be contacted. Nevertheless, health professionals remain cautious in their reports, hoping that patients will continue to seek care without fear of a privacy breach.

Ultimately, applying mandatory reporting laws creates a fine line between help and harm. Professionals continue to try and decrease domestic violence, but with the understanding that some patients may experience increased harm; alternative measures and a harsh analysis of local laws must be used to provide patient safety. Possible solutions include amending law to refer patients to professionally trained domestic and sexual violence services instead of to the police.