Posted on July 14th, 2022by RMANY

Ep 93: What the Overturn of Roe v. Wade Means for Fertility and IVF with Risa Levine

Fertility Forward 93:

Today, on Fertility Forward, we are joined by a true hero in the world of fertility rights. Risa Levine is an attorney, a volunteer advocate for expanding fertility rights, and a Fierce Women’s Health and infertility advisor. We discuss what the overturn of Roe v. Wade means for fertility and IVF, with Risa offering us a definition of trigger laws, the differences between safe or blue states and red states, and how these trigger laws could potentially impact fertility care. She enlightens as to on why there aren’t immediate concerns about fertility and IVF while warning us about the long-term concerns that could potentially plague fertility care in the wake of Roe v. Wade being overturned. We also discuss the importance of advocacy, getting involved in any way you can, and calling out those who are ‘hurting’ women and thanking those who are ‘helping’, as well as why everybody is impacted by this new legislature. To find out how you can advocate for women’s reproductive rights, plus so much more, tune in today!

Transcript of podcast episode

Rena: Hi everyone. We are Rena and Dara, and welcome to Fertility Forward. We are part of the wellness team at RMA of New York, a fertility clinic affiliated with Mount Sinai Hospital in New York City. Our Fertility Forward podcast brings together advice for medical professionals, mental health specialists, wellness experts, and patients, because knowledge is power and you are your own best advocate.
Rena: I am so excited to welcome to Fertility Forward today, a recurring guest Risa Levine to talk about the overturn of Roe and what that means to fertility and IVF. Risa Levine is an attorney living in New York City with a lifelong dedication to pursuing an array of social justice causes through advocacy and activism. Upon becoming an infertility patient in 2004, Risa set out on a mission to expand insurance coverage for people undergoing fertility treatment and was instrumental in the passage of an IVF mandate in New York and legalizing gestational surrogacy arrangements in New York, as well as working on various federal legislative initiatives. She is a graduate of Fordham University School of Law and a graduate of Brandeis University, where she serves as a vice president of the alumni association. Thank you so much for coming on to share your wisdom and expertise on this, obviously quite important and very heavy topic.
Risa: Thanks a lot, Rena. I really appreciate it. Thanks for having me on to talk about this. I, I'm looking forward to our conversation.
Rena: Yeah. So let's start. Risa and I know each other. We met years and years ago through RESOLVE, through advocating. Risa is a power force in the advocacy world. What does the overturn of Roe mean for fertility, for IVF? You know, obviously people are really concerned, so what can we tell them?
Risa: So, first of all, what, what the overturn of Roe itself, what the Dobs case actually does, is eliminate the federal protections for abortion. It means that right to privacy or the penumbra of the constitution, or however it's been phrased in the past does not protect any rights, individual rights, to have an abortion and leaves it to the states to decide in each state what rights women have with respect to their bodies. And that's the issue. From here on in, every state will now have the ability to regulate what women and those with a uterus can do with their reproductive choices and women across women and people with uterus across the country will have different rights in each state. So fairness is an issue.
Rena: Okay, so let's talk about right, there are these quote unquote safe states, and then this, the, the red states, what is the difference?
Risa: So there are quite a few states across the country that have already enacted protections, that have already what's called codified Roe V. Wade. That means that their state laws themselves, regardless of what the Supreme Court did or didn't do, have laws in place that protect the right to abortion. Those are called safe states, or sometimes they're referred to as blue states, blue and red being the colors of the Democratic party and the Republican party, respectively. So in those states where Roe has been codified either before or after Roe, whether the right to privacy, protecting the right to an abortion, or just simply the right to reproductive choices, those states, nothing changes. Women have all the rights that they had before. And without any disrespect intended, just for ease for this conversation, if I say women, I mean, people with uterus is also, and I mean, no disrespect to anyone. So I I'm just gonna shorthand it for, for ease for the conversation. Again, I mean, no disrespect to anybody who doesn't identify as a woman, but generally speaking, we're talking about majority, we're talking about women. So in a state where it's codified, where the right to have an abortion, where the right to terminate a pregnancy, where there, where there's no personhood, any of those things, nothing changes. They have, people will still continue to have the same rights. In those states where they either had laws that were enacted prior to Roe and or, or with the assumption that Roe was going to get overturned at some point, those are called trigger laws. Those are laws that will have gone into effect either immediately, or in some cases, 30 days after Roe is overturned. And those laws go into an effect automatically, the intent was that they go into effect automatically, and that they prohibit terminating a pregnancy with the intent simply to terminate pregnancies. And those are called trigger laws. You know, that they, they they're immediately triggered by the overturn of, of Roe.
Rena: And so trigger laws is that what could potentially impact fertility treatment? That sort of…
Risa: So the way they're currently drafted, there's no state that immediately impacts IVF. In order for IVF to be impacted, specifically in vitro fertilization, specifically fertilizing an egg outside the body, the, the law would have to say, would have to include fertilization outside the body, would have to include terminating an embryo from the second of conception. So far to date, none of the laws impact that. None of the laws say that right now. All of them refer to a procedure performed on a woman's body or a terminating a, an actual pregnancy and pregnancy is defined medically as implantation of an embryo into the uterine lining. So we don't have any immediate concerns. Right now, IVF remains legal in every state in the United States
Rena: And that's comforting. But I, I think the concern then is, you know, for ectopic pregnancies or pregnancies, where the, the fetus has severe abnormalities, that then we would no longer be able to selectively terminate those.
Risa: So there's a couple of things at play here. I believe every state has an exception for the life of the mother and they diff, they differ in how they write it. Some say something like, for preventing death. Some say emergency to save a life, et cetera. So the onus is on the physician to prove that the immediate life of the woman was threatened by this pregnancy somehow. And we know that is true as intelligent people who've been working in this field for a very long time, working, or in my case, volunteering in this field for a very long time. We know that an ectopic pregnancy is life threatening to the woman, but in states where a bunch of people who are not medical professionals are making the decision, the physician, unfortunately, has to prove that the life of the mother was at risk in performing the procedure. I can't tell the AMA what to do and I can't tell ACOG what to do, but I am in shock that they haven't immediately established that an ectopic pregnancy is an immediate threat to the life of the mother period, end of story. That is something that needs to be addressed immediately. And that in any event, no viable the, the, the viability chances of an embryo that implants in the, in, in the fallopian tubes has virtual ,o, no, no chance of success anyhow. So again, that's, that's a topic for medical professionals, but I still wanna talk about fertilization for a moment because for IVF, the risk is where they're going to go with this. And although, as I mentioned, all of the current laws refer to pregnancy, for some reason, a couple of them actually include a definition of a, of fertilization in their statute. And it's unclear to me why they need, as, you know, as somebody who is able to read laws and look at intent and look at, you know, legal language, there's no reason for them to have defined fertilization when the law is drafted that a pregnancy, they're already talking about a pregnancy. It's past the state of fertilization. Fertilization happens first, pregnancy happens after. And yet they have a definition of, of fertilization, which to me almost looks like a placeholder for a time when they might say that they're gonna bar termination at the fertilization stage and not at the pregnancy stage. And that's what, where I'm concerned. So there's two places for us in this, in the fertility industry to be concerned: one, testing on fertilized eggs, ie embryos, and two, freezing of, of fertilized eggs. I'm concerned about the fleet freezing and thawing what's gonna happen if they say you can't freeze or thaw fertilized eggs, that you know, that, that there's implications for that or that you can't test on fertilized eggs. That's, that's where my concern is for IVF. And then, you know, and that gets into why so many women are thinking about what's going on with their stored embryos and wondering if they should be moving them outta states. Like I said, there is no reason for anybody to be doing anything immediately, except for one thing, which I really do wanna spend time on and that's advocacy. But the long term concern is, is that's where the impact is of Dobbs. That the impact is on fertilized eggs and what we're gonna do pre-pregnancy. And whether there's a chance that they declare what's called personhood, that an embryo has rights. That's, that's my concern.
Rena: So who's the, they you keep referring to? Politicians?
Risa: Okay. So exactly. So state governments, this is so all the power now lies in state governments to decide what happens to women's bodies and, and, and eggs and embryos and, and all, and all genetic matter. This is the, the, the power now lies in state governments to decide what to do. And anybody who's concerned should be looking to their state government. They should be looking at their existing legislators and they should be looking at who's on the ballot in, in, in in coming elections and what they will do and what their impact is going to be. So, again, as of today, nothing changes for IVF alone, but what could happen in, in the future, people should be looking at who is in their state governments. The other thing to be aware of is that we're starting to see people in the, in, in the various industries, for example, I, I'll give you a specific case. And again, this is anecdotal. A woman went to her pharmacist for, to fulfill a, a prescription for her fertility meds. And the pharmacist looked at her funny and started asking her whether she was pregnant or not, because we know that some fertility meds are not to be taken during pregnancy and started asking her questions. That's scary for, for people. Questions suddenly being asked that are outside the scope. This should be between, of course a pharmacist wants to make sure that there's not harm. They have the rights to say, do you have any allergies? Do you have any risks, et cetera. But if they're doing so, if they, to contravene a woman's rights to go forward with an IVF cycle, they have no rights to do that. And women should not be intimidated. So again, we sometimes see the fallout from these laws having impacts that are not protected by… That pharmacist has no right to intimidate a woman in, in Texas about going forward with an IVF cycle. So those are some of the concerns. And I would want, again, two things, there's, there's legislative advocacy, where you go to your state governments and say, and try to make sure that any laws they enact don't include IVF. And then of course, personal advocacy on your own behalf, everybody needs to know the laws and what they do and what, what, what rights people have and don't have. And again, no one has the right in any state in the United States to stop you from going forward with an IVF cycle.
Rena: I think those are great points. I think, you know, knowledge is power. Educate yourself. Know what your rights are. Don't allow yourself to be bullied and then advocacy. You know, you and I are both very involved in advocacy, and that is your power. You know, and I know when this happened, I would across the board, everyone of my clients brought this up. I was talking about this in every meeting and people were feeling so down, you know, everyone from patients to physicians and, and feeling it was a really heavy few weeks. And we still have our voices. That is our power. Advocacy is in our hands. And that's how we can enact change.
Risa: So for most of your clients, which are in New York or in the tri-state area where we're protected, they're, it's a terribly depressing time for their, for people who believe that reproductive rights are important, which they are. I mean, that should be a fact. It shouldn't be up for debate. Reproductive health, I mean, is at an issue here. But for women whose immediate rights, whose rights are not going to be impacted at all, there are many things that they could do and many ways to help outside of... I mean, of course the easy thing is to write a check to various advocacy groups and states that are being impacted, or to get involved in federal advocacy to demand that our federal legislators, our state, our, our representatives seek to codify Roe on the federal level, which is going to be very, very hard to pass, but it took time for making sure. I mean, if you haven't been paying attention, then that's on you. I mean, and I don't mean you. I mean the voter. If you haven't been paying attention and you're suddenly waking up now, well, I feel really angry about that and a little sad for all the people who haven't been paying attention. But for those who maybe wanna go forward and say, today's a new day, and what can I do today? Pay attention who your federal legislators are and let them know that you will be voting based on this issue. And you wanna make sure they're fighting as hard as possible for codifying it on the federal level. Even if it can't be passed, we still wanna make sure that they're still fighting for it and keeping it alive and, and fighting against the filibuster. I mean, we're gonna have to overturn the filibuster and that's gonna be very hard. So, and again, those are, there are states on the east coast where that is critical. Second, they could be supporting the advocacy groups in states like Texas or Kentucky or Oklahoma or South Dakota. They could be supporting the local chapters of planned parenthood or or, or any, or even if they don't wanna go as far as that, there's a many advocacy groups that are already working on the ground. Three, they can go to those states and they can help out if they, if they have the means and the time to do so. And four, there are, New York has said, and I believe has already enacted, I think the governor has already signed the legislation that said that New York will be helping people from states that don't have access to abortion. And there are, I mean, people can volunteer to house women, to support individual women who need to come to New York for an abortion. I mean, it sounds crazy. I mean, it's a new underground railroad. I mean, I don't know if we should be calling ourselves, you know, the Harriet Tubmans or something like that, but there one on one basis, women who need those helps. Again, it's, it's hard. And, and people have to decide for themselves which way they are most comfortable helping. I mean, there are people who volunteer for AARP and then there are people who read to seniors or visit seniors and hospitals. You know, there's ground level support, and there's macro level support. And there is room for every single person who wants to help somebody to do it in the way that's most comfortable for them.
Rena: I think those are all amazing points. And I think, you know, I was really impressed again, you know, I see a whole diverse range of, of people, and I was very impressed. You know, people from 20 somethings, you know, all the way up to, you know, 50 somethings, you know, it was a topic of conversation, you know, all demographics and yes, I'm in the tri-state area. So I'm not in a, in a red state, but I was really impressed that everyone was impacted. And I think as you said, I mean, look, you can write a check. You can give your time. There's so many ways to get involved. And I think, you know, for those people that are sort of like turning their head, like, don't look at me, not me. It is you, you know, you can help. You can raise your voice. This is on us. And yes, this is really hard and this is really heavy, but we can raise our voices. That's our power. It was in a, I believe it was, it was an ASRM webinar a couple weeks ago right before this happened. And they were, were saying, you know, look, politicians, you know, legislators, they're faced with a million issues. Right? And you and I, we live, eat, breathe, sleep this. So for us, it's like, yes, hello, it's right at the forefront. But politicians are faced with a million issues every day and they choose to work on what their constituents want them to work on. And so that's when making a call, writing a letter, tagging on social media, then they pay attention. Oh, someone who's going to vote for me, cares about this. Then I need to care about it. And so that's how you can raise your voice, tell them what to pay attention to.
Risa: So you ask me who they are. This is a question I've been asking since I'm a freshman in college when I was working on Soviet jury rights. When people say, well, why don't they do something about it? I always look at them and say, who's they? They is you. So your point, to me, every single person who says they care about this topic should be at a minimum, the easy thing to do is to tag and social media is, I mean, we all spent far too much time on social media. That's something you can do while you're waiting, you know, while you're waiting for the bus, while you're on the subway platform, while you're waiting in line to pay your, your grocery bill, whatever it is you can tag, you know, you can tag a legislator on social media, you know, tag tag, a legislator a day, you know, campaign, letting them know that you are, that you care about this issue. That's the easy stuff. And we shouldn't even be thinking twice about that. And we should be supporting our, our good guys and letting them know that that's, that we support them because of this issue so that we keep them motivated. Cuz it's hard for them. I mean, there are politicians who are fighting for this every single day and we gotta keep their energy up and their hope alive that people are actually hearing that they're doing good stuff on our behalf. And that they're not just taking the negative energy that they're taking the positive energy, you know, the, the thank you tags. So, you know, there's the negative tag, you know, why haven't you done something or how dare you have done this or how dare you have supported judges or voted for judges that are gone, that are on, on the lower levels. And then on the federal, on the SCOTUS level, that's supported overturning Roe, but also thanking those who are leading the fight. So that's, you know, that's something that's really super easy. The harder things are some of the things that I mentioned - getting involved in state legislatures to fight, to protect both IVF, make sure that our, our specific issue isn't included, but also to fight for the bigger issue of codifying, you know, codifying legal protections for, for abortion and all reproductive choices, giving money, supporting women, all, you know, all of those. I mean, supporting women on the, you know, on a, on a granular level. All of those are options for people to have. Those are harder, but people should consider doing them. Protests are community ways to get involved. You can grab a group of friends. They don't alone change anything, but in, in union with all the other activities that you could take, yes, numbers speak volumes. So yes, everybody should continue to do what they can. Not everybody can do everything, but everybody can do something.
Rena: Oh, I love that sentence. Not everyone can do everything, but everyone can do something. That is a great mantra.
Risa: I try.
Rena: I love that. I think that's really wonderful. And I think, you know, that resonated with me as someone who wants to do everything, right? Like we can't
Risa: Don’t knock yourself out, Rena. Right? Don't knock, I mean, we both know that we have carried the burden of other people on our shoulders and it's impacted our health and it's impacted our, our physical health and our mental health. Yeah. So I don't wanna turn to, certainly not you, I don't wanna turn to any one person and say you gotta do everything. And that's why I said about what I said earlier about supporting those who are fighting for us on a national level, on a federal level. Those, you know, some of those women legislators, especially who are fighting so hard for us. Yeah, we should be sending them a thank you. Thank you, Senator Gillibrand for fighting for women's rights. And thank you, Senator Gillibrand for fighting for supporting IVF rights or Senator Booker or, you know, let them know we appreciate what they've been doing for us. Senator Duckworth, you know, thank you for, for fighting for our issues for so long to let them know that we're out there and that we see their activities, but also the ones who are, are the, the, you know, the, the negative, let them know. Mitch McConnell, you have hurt women. You have endangered women's lives with what you have done. Let them know that we, we're watching.
Rena: I love, really another great point. Yeah. I mean, look, you can give of yourself too by sending, you know, notes of gratitude, which I think, you know, both you and I, I know we work really hard for other people and it makes all the difference to get a note, flowers, just something. And so that's a great way to also support, right. You know, send, you know, someone working for us, a note, flowers, something, like thank you so much for using your voice to help, you know, protect me in a,
Risa: I hope that at a minimum, one of the takeaways is that everybody should say, thank you, Rena. Thank you, Rena, for everything that you do, for hosting this podcast, for bringing these issues to life or for creating a sense of community so that everybody knows they're not alone in doing this. I mean, the that's an important role too, and it's exhausting to keep hearing everybody's painful, painful stories and, and trying to support them and carrying them. And so we, we actually do need to let each other know that we see them, that we appreciate the work they're doing and that we're not alone in doing it.
Rena: Sure. I think just an attitude of kindness, right? Like we're all in the struggle. And I think, you know, kindness counts, kindness goes a long way. And so I think it's just about being kind to one another and look being vulnerable and open and authentic is hard. But I think the more you do it, the more you see that you're not alone in whatever you're going through. And I think that's really powerful. And, and you know, again, I have really been surprised that really across the board, all, all demographics sort of all across the board, every patient, this has impacted in a really heavy way. I mean, I've probably had more crying, people crying in conversations the past two weeks than ever. And that really resonated. Obviously the pandemic was really hard, but this just hit people differently. And so I so appreciate you coming on, sharing your expertise, your wisdom, your energy and spirit to help people know how to raise their voice, how to be involved, how to get their power back.
Risa: So one of the things that we have learned is, is that when people can have come to Washington DC for advocacy day, and even when it was, as it has been the last couple of years, through zoom, at the end of the day, there is almost a euphoria among advocates. We've seen it in Albany. We've seen it in DC. We've seen it in states, in all the states where there have been advocacy days. People are actually euphoric. There's like a giddiness after people have had this opportunity to speak to their legislators. And so we are not just talking about power. Power is a good is, is, is very important because it's fuel for going, you know, going on day to day. But lifting of that mental state, that hopelessness that ennui, that sadness, activity, it's a different kind of endorphin release to actually do something about the situation we're all in. And so if, if, even if you're doing something for the benefit of the greater good, you actually will be doing something for yourself. I am speaking directly to all the people out here, out there listening and wondering what they could do to make themselves feel better - do something, and you'll feel better. Write your legislator, call to meet with your legislator. Help another person, adopt somebody going through the process in another state who's being intimidated along the path of treatment. You will feel better yourself. We talk about retail therapy and we talk about self-care. This is self-care. Helping other people is self care. Do it, you'll feel better. I promise.
Risa: Yeah. I mean, well, that's sort of the 10 out of positive psychology, you know, is sort of these random acts of love and kindness. It really it's proven. Yeah. It will help you to help others. So totally get outside yourself. It's so easy to get bogged down in your own crap, get outside yourself, help others. And it will really help you. So thank you so much. This was so wonderful. I have an endorphin rush now from, from talking to you and you sharing your, your wisdom and spirit. So the way I like to conclude episodes is by sharing a gratitude. So we can end on a note of positivity.
Risa: Well, I saw my cousins last night and they took me out for dinner for a belated happy birthday. And I am very appreciative of that. And the, the gratitude is all the people in my life who've been so kind to me and who remember me, you know, being alone is, is, is tough. And so when somebody reaches out and says, you know, thank you and wants to include me in their family plans or include me in their social plans. I'm very, very, very grateful.
Rena: Aw, well, belated happy birthday.
Risa: Thank you,
Rena: I guess, and I'll say, you know, I'm grateful for my voice. Certainly been in situations the past two years where I've lost it and I let it be taken from me. And I'm really grateful to have worked hard and to have found it. And, you know, life is full of ups and downs, but figuring out how to find my voice and use it is probably one of the best things I've done for myself. So I'm really grateful for that. And I know that you help other people do that too. So thank you so much for everything you do.
Risa: Thank you, Rena. Thanks a lot for having me.
Rena: Of course. Thanks so much.
Dara: Thank you so much for listening today and always remember: practice gratitude, give a little love to someone else and yourself, and remember you are not alone. Find us on Instagram @fertility_forward and if you're looking for more support, visit us at and tune in next week for more fertility.

The First Step Towards Your Future

Every journey begins with a first step. Attend a free seminar, speak with
a patient concierge, or schedule a consultation.

Get Started

Stay Connected

Oct 18th - Fertility 101 Seminar. Oct 18th - Fertility 101 Seminar. Learn More