Roe v. Wade: The Next 35 Years

Our world is changing, and we must take the time now to determine what the right to choose means in the 21st century, writes Jessica Arons.

On January 22, 2008, the Roe v. Wade decision turns 35 years old. Thanks to that decision, the women of my generation came of age knowing that safe abortion care would be available—at least for those of us who can afford the procedure, find a provider, reach a clinic, take the time off from work, find child care, get a parent’s or a court’s permission, and overcome any other practical obstacles that women frequently encounter when trying to obtain an abortion in the United States today.

The women of my generation also have grown up amidst a debate that equates reproductive rights solely with abortion rights and preventing unintended pregnancy.  Despite numerous efforts by activists to expand the discussion, political debates over reproductive rights routinely focus on abortion, contraception, and sex education, while overlooking the needs of women who want to continue their pregnancies and raise their children, those living with HIV/AIDS, those struggling with abusive relationships, and those trying to overcome infertility.

It is this last category that may prove the most interesting and challenging when considering the future of Roe v. Wade. Assuming for a moment that current efforts by anti-abortion rights activists to overturn the decision do not succeed, what are the applications of the Roe decision and its progeny to assisted reproductive technologies like in vitro fertilization, egg donation, embryo screening, and surrogacy?

For instance, how should we think about multiple pregnancies?  When women use fertility drugs, doctors cannot always predict how many eggs may be released and fertilized. As a result, a multiple pregnancy—with twins, triplets, or more—often occurs.  Multiple pregnancy also is on the rise because doctors frequently transfer multiple embryos during IVF, uncertain how many will “take.”  The hope is if they transfer four or five, maybe only one or two will implant and develop. Patients, in the meantime, sometimes like the prospect of a multiple pregnancy. IVF is so expensive and invasive.  Wouldn’t it be nice to “get it over with” all at once and have an instant family?

The problem is, multiple pregnancy substantially raises the health risks to both the mother and the children. In addition, raising multiples can bring increased emotional stress, fatigue, and financial pressures that have serious consequences for families and society.

But one of the arguments in favor of legal abortion is that we want women to be able to make their own decision about what should happen with their bodies. If a woman is fully informed about the benefits and risks of multiple pregnancy, should she be able to proceed? Similarly, case law has found that the men and women who create embryos through IVF maintain the primary right to determine what should happen with those embryos. Does that mean they can have as many embryos implanted as they want? 

Conservatives often argue that embryos have a right to be implanted and developed and should not be discarded or used for research. But what about the rights of children eventually born through these processes? Do they have a right to be gestated and delivered under circumstances that optimize the opportunity to have positive health outcomes? In fact, the risk of negative outcomes is far greater with multiple pregnancies than with pregnancies affected by substance abuse. States sometimes prosecute women for using drugs during pregnancy, but I doubt we would ever consider doing so to women who choose to maintain a multiple pregnancy.

Just about every assisted reproductive process raises equally challenging questions. 
What are the effects on the disabled in terms of stigma and government support if we screen and discard embryos that test positive for genetic or chromosomal predispositions for disability and disease—even those that may not be life-threatening or may not arise until later in life? How do we feel about patients choosing screened embryos based on their predicted sex? If we allow abortion for any reason, must we allow embryo de-selection for any reason?

Should a woman be paid for donating eggs or being a surrogate? If she has been informed of the potential risks, does she have the right to use her body in this way? At what point does a payment become coercive and exploitative? Does our answer change if the woman is a college student trying to pay her loans, a 28-year-old lawyer who never intends to have her own children, or a single mother living at the poverty line? Does it matter if she is in the United States, Romania, or India? 

Although admittedly daunting, we should not be afraid to ask these questions. Rights do not exist in a vacuum; they must be put in context and tested in the real world. The past 35 years of Roe v. Wade have brought their fair share of political and cultural turmoil, but the next 35 years promise even more—unless we acknowledge that our world is changing and take the time now to determine what the right to choose means in the 21st century.

Jessica Arons is the Director of the Women’s Health & Rights program at the Center for American Progress and author of "Future Choices: Assisted Reproductive Technologies and the Law."

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Jessica Arons

Director, Women\'s Health & Rights Program