Doctor wearing glasses listening to female patient.

Physician Free Speech and the Doctor-Patient Relationship Post-Dobbs

By Lynette Martins and Scott Schweikart

Laws regulating physicians’ professional speech – i.e., what they can and cannot discuss in the exam room with patients — have made a resurgence in the post-Dobbs era. These so-called “gag laws” have primarily targeted physicians’ speech around firearms, reproductive rights (predominantly abortion), and, less frequently, conversion therapy.

In the abortion context, these restrictive laws impact not only patient access to critical medical services, but also the fundamental underpinnings of the physician-patient relationship.

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Health insurance application form with money, calculator, and stethoscope.

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.

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Magazines on wooden table on bright background.

Monthly Round-Up of What to Read on Pharma Law and Policy 

By Ameet Sarpatwari, Aviva Wang, andAaron S. Kesselheim

Each month, members of the Program On Regulation, Therapeutics, And Law (PORTAL) review the peer-reviewed medical literature to identify interesting empirical studies, policy analyses, and editorials on health law and policy issues.

Below are the citations for papers identified from the month of April. The selections feature topics ranging from an analysis of government and industry investments for recently approved drugs, to a discussion of court decisions on mifepristone, and an examination of the added therapeutic benefit associated with the top-selling brand-name drugs in Medicare.

A full posting of abstracts/summaries of these articles may be found on our website.

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Surgeon at work in the operating room.

AMA Supports Physicians’ Access to Fertility Preservation

By Scott J. Schweikart*

Many medical professionals in the United States today face a personal dilemma over whether to delay (and potentially forego) starting a family in order to fulfill lengthy medical training. In response to these concerns, the American Medical Association (AMA) recently passed a new policy that supports trainee access to assisted reproductive technologies (ART).

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Child holding paper family in LGBT rainbow colors.

Gamete Regulation and Family Protection in a Post-Dobbs World

By Courtney G. Joslin

Increasing numbers of people are forming families through assisted reproduction. Recently, there has been a push to impose new regulations on various aspects of this process. Some of these new laws open up participants to a range of possible penalties — civil, criminal, and/or professional discipline — for past “misconduct.” Other laws seek proactively to regulate the fertility care process. For example, some laws regulate the collection and dissemination of medical and identifying information about gamete providers — that is, sperm and egg donors. Other proposals seek to require gamete providers to agree to the release of their medical records.

It is surely important to assess and evaluate fertility care practices and to consider whether additional regulation is appropriate in this space. Particularly in the post-Dobbs era — an era marked by increasing attacks on reproductive health care (including access to IVF) and on LGBTQ people — it is also important to proceed cautiously and to consider how these proposals may adversely impact reproductive autonomy and family recognition.

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Child smiles at pregnant mother.

Uterus Transplants and the Right to Experience Pregnancy

By I. Glenn Cohen

It is estimated that roughly one in five hundred U.S. women suffer from Uterine Factor Infertility — they were born without a uterus, they lost their uterus, or their uterus no longer functions. Until very recently, this essentially meant that pregnancy was not an option for these women. Because of uterus transplants, this is beginning to change. Such transplants raise a host of legal and ethical questions, which I will preview in this piece.

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Fertilized human egg cells dividing.

The Irony of Pro-life Efforts to Grant Embryos Legal Personhood

By Gerard Letterie and Dov Fox

The overruling of Roe v. Wade has emboldened pro-life lawmakers to confer legal personhood status on early-stage embryos outside of pregnancy as well, including in the context of assisted reproduction. Recognizing embryos as legal persons, it is said, promotes a “culture of life.” And yet treating embryos as persons would actually undermine a promotion of human life, in this critical sense: helping people to have the children they want and are otherwise unable to have.

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Close-up - barista prepares espresso in coffee shop.

The Infertility Shift

By Valarie K. Blake and Elizabeth Y. McCuskey

In vitro fertilization (IVF), like most medical care in the U.S., costs far more than most people can afford out-of-pocket: over $12,500 per cycle, with multiple cycles typically required. But, unlike most other expensive medical care, IVF rarely has insurance coverage to defray the cost.

In 2020, only 27% of employers with 500+ employees and 42% of employers with 20,000+ employees covered IVF in their employer plans. Companies like Starbucks and Amazon know this and use it to draw in employees at low (or essentially neutral) wages.

Recent reports reveal women working second shifts for these corporations solely to qualify for employer health benefits that cover infertility treatments. Starbucks, for example, covers IVF for employees who work 240 hours over three months, or roughly 20 hours per week. Frequently, in these low-wage positions, workers earn just enough to pay for their health insurance premiums and sometimes the associated cost-sharing requirements.

How did we get to a place where women must work an “infertility shift” beyond their full-time jobs to access medical care?

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Austin, TX, USA - Oct. 2, 2021: Participants at the Women's March rally at the Capitol protest SB 8, Texas' abortion law that effectively bans abortions after six weeks of pregnancy.

The Impact of Criminal Abortion Bans on Assisted Reproduction in the Post-Dobbs Landscape

By Yvonne Lindgren

In Dobbs v. Jackson Women’s Health, the Supreme Court overruled Roe v. Wade, the constitutional floor that had protected the abortion right for nearly fifty years, and returned the issue of regulating abortion to the states. In the post-Dobbs landscape, thirteen states have banned abortion, either through laws passed after the decision, through trigger laws, or by reviving pre-Roe era abortion bans. As a result of criminalizing abortion, the protective function of medical malpractice law is supplanted by provider and institutional decision-making driven by the imperative to avoid criminal liability and loss of licensure. This essay argues that abortion bans have made all reproductive health care less safe, and that these new pregnancy-related dangers will disproportionately impact assisted reproduction, because those who conceive through assisted reproduction often face a higher risk of complications needing medical intervention, and because women may be reluctant to act as surrogates in light of the heightened risk of pregnancy.

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