How the Dobbs Decision Can Affect Cancer Patients

Lisa Harris, MD, PhD, began to look at her cancer patients differently after the Supreme Court's draft decision to overturn Roe v. Wade leaked in May 2022.

One patient, who was 14 weeks' pregnant, was hospitalized with aggressive, widely metastatic cancer and was in need of palliative chemotherapy. The patient was so thin and frail that it was hard to fathom how she had sustained the pregnancy for so long, said Harris, an ob/gyn at the University of Michigan in Ann Arbor.

The patient requested an abortion, and during the procedure Harris remembered thinking, "what would have happened ... to our patient if she had come to us and abortion was illegal in the state? Would her abortion count as lifesaving when there was no saving her life?"

That hypothetical became reality for some physicians following the high court's Dobbs v. Jackson Women's Health Organization decision, which reversed Roe and upended decades of legal precedent, returning the decision on abortion to the states.

Harris spoke about the case during a webinar hosted by the National Cancer Policy Forum last week about the effects of the Dobbs decision on patients with cancer. Experts and advocates delved into the threat of state abortion bans, even those that include exceptions for the life of the mother, and discussed other ripple effects of the decision, including access to in vitro fertilization (IVF).

Harris's clinical work includes abortion care, and as a physician at an academic tertiary care center, she cares for the most medically complex cases, including patients with cancer.

In the context of abortion at her hospital, caring for a patient with cancer meant either that the patient's illness led them to an abortion decision, or the patient chose abortion for reasons distinct from their underlying health problems, but could not safely be cared for in an outpatient setting.

After the Dobbs oral arguments were heard in late 2021, the university created a "post-Roe" task force to prepare for the possibility of changes in abortion access, which at the time, she said, felt abstract -- like a "thought experiment." They asked themselves how they would respond if patients came to the University of Michigan for abortion care and the hospital could no longer provide that care.

Harris and her team were all aware that Michigan had an "active abortion ban" enacted in 1931. Under Roe v. Wade, the ban was not enforceable but if that decision was overturned, it could become law once again.

The 1931 ban included an exception in cases where abortion would preserve the life of the mother, and they considered a range of questions around its potential re-enforcement. For example, did pregnancy in the setting of cancer count as a threat to life? If so, how is that risk qualified?

Risk assessments might vary among clinicians, and patients' own calculus of the level of acceptable or unacceptable risk may clash with clinicians'.

Furthermore, does the threat to life need to be immediate? Chemotherapy, if delayed, could impact long-term survival, but not necessarily short-term survival, Harris noted.

She wondered whether under an abortion ban, any terminally ill patient would by legal right become no more than "an incubator."

Such a scenario was not unprecedented, Harris noted. Another panelist shared the story of Marlise Munoz, who in 2014, was kept on a ventilator because of a Texas law that prevents physicians from withdrawing or withholding life-sustaining treatment from a pregnant woman.

Harris said that Michigan does not invalidate advanced directives for pregnant people, "but we are a state in which a surrogate decision-maker cannot withdraw life support if a patient is pregnant."

She also considered what would have happened if her patient who was 14 weeks' pregnant had needed to be transferred out of state to another hospital. As a clinician, she might have been deemed to be "aiding and abetting" an abortion, which does occur in some states.

In the end, none of Harris's fears were realized. The patient had an "uncomplicated abortion" and died around the time of what would have been her due date had she continued with her pregnancy. Moreover, just weeks after the Dobbs leak a Michigan judge issued an injunction to block enforcement of the state's abortion ban if Roe was to be overturned.

In November 2022, Michigan passed an amendment to its state's constitution to preserve the right to abortion and reproductive services.

"I'm no longer distracted by spiraling thoughts of 'what if.' But, of course, in half the states in the country, this is the reality," Harris said.

In Vitro Fertilization After Dobbs

In addition to abortion, access to IVF is critical for many cancer patients and others with serious illness. One in 1,000 pregnant people is diagnosed with cancer each year, said Lisa Schlager, vice president of public policy at Facing Our Risk of Cancer Empowered, a nonprofit focused on advocacy for patients with hereditary cancers.

It's not uncommon for patients to receive these diagnoses in their 20s and 30s, when many are considering having children, Schlager noted, adding that one option for these patients is storing their embryos.

However, there are laws prohibiting embryos from being created, except for the purpose of immediate implantation. Pre-Dobbs, two states -- Louisiana and Kentucky -- passed laws banning "intentional embryo destruction," noted I. Glenn Cohen, JD, a professor at Harvard Law School in Boston, though Kentucky's law only applies to public medical facilities.

"Neither of these have ever been challenged," he said.

In spite of these laws, public sentiment trends in favor of IVF, he added. A 2013 study from the Pew Research Center found that while 49% of respondents believe abortion is "morally wrong," only 12% of respondents felt that way about IVF.

Furthermore, no new states have explicitly tried to restrict embryo cryopreservation or IVF, Cohen said.

On the contrary, "one of the most restrictive laws on abortion in the country" -- West Virginia's Unborn Child Protection Act -- includes an exception for IVF, he noted. An Oklahoma law includes similar protections, but they are not as clearly defined, he said.

Notably, Harris and Cohen both highlighted the unintended consequences of zeroing in on one patient population seeking abortion or certain reproductive technologies, and not others.

"It's a deep and difficult ethical question, whether ... we should all rise and fall together," Cohen said, noting that within the reproductive justice movement, exceptions "have a way of splintering the coalitions we need for forceful political action."

Harris stressed that patients with cancer are like all other patients exercising their autonomy; they are no more "worthy" or "unworthy" of an abortion.

Cohen pointed out that in the rush by state lawmakers to adopt "personhood" language, states may "inadvertently create problems for embryo preservation, embryo destruction, and IVF."

"The next frontier is not just the lack of a constitutional right to an abortion, but the federal constitutional recognition of the personhood of fetuses, as entities under the Fourteenth Amendment," he said. "That is, in some ways, the ultimate end state. That's an end state where it doesn't matter if you live in a red state or a blue state. If that is achieved through Supreme Court litigation, it will have dire implications for abortion access across the United States."

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