Fertility Journal Editors Oppose Supreme Court Nominee

Kerry Dooley Young

October 22, 2020

A Supreme Court nominee's 2006 decision to ally herself with a group that takes a controversial stance on assisted reproduction led editors of a medical journal to make an unprecedented decision and weigh in on a political question.

Writing in an editorial earlier this month, the editors of Fertility and Sterility urge a rejection of the nomination of Judge Amy Coney Barrett for the Supreme Court.

At issue is Barrett's link to a group whose executive director has been quoted as supporting the criminalization of the discarding of frozen embryos or selective reduction through the in vitro fertilization (IVF) process. Barrett has not made clear publicly whether she shares this view, saying her role as a judge keeps her from expressing opinions.

"We don't have a full sense of what she believes or of the ground that she stands on," Craig S. Niederberger, MD, co-editor-in-chief of the journal, told Medscape Medical News in an interview. "It was so unsettling that we felt that it was important for our patients and for our field that we get this word out."

The editorial marks the first time in 70 years that the journal has weighed in on a Supreme Court nomination, write Niederberger, Co-Editor-in-Chief Antonio Pellicer, MD, and Associate Editor Eve Feinberg, MD.

The move, though, comes in the wake of several other journals making unusual forays into politics. The editors of the The New England Journal of Medicine, Scientific American, Nature, and The Lancet Oncology have all weighed in on the presidential election in recent weeks. Editors said the potential risk to their publications' reputations as nonpartisan arbiters of science was necessary because of the current administration's attacks on research, mishandling of climate change, and bungling the response to the COVID-19 pandemic, Medscape Medical News reported previously.

Unlike the editors of those journals, who could point to specific anti-science actions taken by the Trump administration, the editors of Fertility and Sterility could only look to possible hints at how Barrett might rule if presented with a case involving IVF.

Weighing the Evidence

Barrett in 2006 signed an ad run by St Joseph County Right to Life of South Bend, Indiana, which earlier this year changed its name to Right to Life Michiana. The ad appeared in the South Bend Tribune, stating: "We, the following citizens of Michiana, oppose abortion on demand and defend the right to life from fertilization to natural death."

Earlier this month, The Guardian reported that Jackie Appleman, the executive director of Right to Life Michiana, said that the organization supports criminalizing the discarding of frozen embryos or selective reduction through the IVF process.

However, in an email exchange with Medscape Medical News, Appleman declined to confirm that her group seeks the passage of laws against discarding of embryos.

"We don't take a position (condemn or condone) fertility treatments," Appleman wrote. "We do condemn the practice of discarding embryos, which sometimes happens in IVF because this destroys innocent human life."

This stance raised alarms in the IVF community where many patients and physicians already face difficult choices about unused embryos. Sen. Tammy Duckworth (D-IL), who used IVF to become a mother, urged her colleagues to reject Barrett's nomination. Barrett's signature on the St Joseph County Right to Life letter "demonstrates a lack of judgment, an absence of due diligence and a derision toward families like mine who were only able to have children with the help of methods and assistance," Duckworth wrote in an October 2 letter to fellow senators.

Criminalization and an "Anti-Family Stance"

Niederberger told Medscape Medical News that he and co-editor Pellicer enlisted Feinberg's help in considering whether and how to proceed in terms of drawing attention to the IVF concerns. The three ultimately decided the journal needed to make a statement about the IVF discussion that arose around Barrett's nomination.

"It wasn't fun to do this. It was hard," Niederberger said. "It is not a natural place for us to go."

In their editorial, the three fertility experts say seating Barrett on the Supreme Court could prove a threat to IVF if laws were passed to punish physicians in case of lost embryos.

"Frighteningly, any procedure that might risk the embryo's viability would put physicians at risk for criminal violation. Letting supernumerary embryos go or those that were aneuploid or affected with a single gene disorder would be illegal," they wrote.

"Physicians would be forced to transfer all embryos, resulting in greater health risk to women and lower pregnancy rates as has been repeatedly demonstrated in countries that do not impose these restrictions," the editors added. "Scientific advances in the field would come to an immediate and devastating halt without the ability to continue reproductive research."

These kinds of legal restrictions against IVF would deprive many people of their chance to have biological children, Niederberger told Medscape Medical News.

"In my view, it's really an anti-family stance," he said.

Persisting Questions

Approximately 1.7% of all infants born in the United States every year are conceived using assisted reproductive technology, with IVF being the main treatment used, according to the Centers for Disease Control and Prevention.

Barrett's views are of extreme interest to both would-be parents struggling with infertility and the physicians who treat them, said Sen. Richard Blumenthal (D-CT). He pressed Barrett to clarify her views on IVF during a Senate Judiciary Committee hearing on her nomination that ran from October 12 to 15.

"Is making IVF a crime constitutional?" Blumenthal asked Barrett.

Barrett said it would be improper for her as a current federal judge and as a nominee to express opinions, beyond commenting on those she had made public before serving on the bench. She said this had also been true for earlier Supreme Court nominees who appeared before the committee. Thus Barrett, who serves on the Court of Appeals for the Seventh Circuit, declined to clarify her views on IVF.

"We can't answer questions in the abstract that would have to be decided in the course of the judicial process," Barrett said.

The scenario in which the Supreme Court would rule on IVF would require a challenge to a future law passed limiting the use of this technology, Barrett said.

Blumenthal said he was disappointed by Barrett's replies, saying people looking to use IVF to start families and their physicians would find her lack of clarity on this topic to be concerning.

Groups that are seeking to make abortion and family planning illegal usually try to steer clear about debates about IVF, several experts said.

"If you want to say you have family values and this is the only way a patient can build a family, you don't want to come out and say you're against it," explained Marcelle Cedars, MD, director of the Center for Reproductive Health at the University of California San Francisco.

There have been efforts made in the United States in recent years to pass laws that put physicians and women at legal risk in cases where pregnancies are interrupted, Cedars said. These are part of the so-called personhood movement, including a failed 2011 Mississippi ballot measure. Families who had children with IVF helped defeat the measure, as it raised concerns that physicians would hesitate to perform IVF due to fear of criminal charges if embryos didn't survive.

Cedars told Medscape Medical News she was pleased to see that the editors of Fertility and Sterility highlighted the consequences of potential laws that would reflect a drive to preserve all embryos. These might suit those like Barrett, who argue that life begins at conception, but it is an opinion not shared by other Americans, she said.

"I get very concerned, as do many others, when people who have very strongly supported this theological concept are in positions where that interpretation can affect healthcare for a much broader population," Cedars said.

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