With IVF, one thing is certain: It is totally incompatible with pro-life beliefs
The recent Republican move to protect in vitro fertilization methods must signal the end of that party’s effort to materially restrict abortion rights before 20 weeks gestation, if the rule of law prevails.
After an Alabama court ruled that frozen human embryos were human beings, Republican leaders wasted no time coming to the defense of IVF. That paragon of family values, Donald Trump, said he would “strongly support the availability of IVF.” Even Mike Pence recognized its limits: “I fully support fertility treatments and I think they deserve the protection of the law."
In Iowa, Republican state Sen. Brad Zaun, who once boasted he was responsible “for writing some of the most restrictive abortion laws,” pulled from a vote in his Judiciary Committee (previously passed by the full House) a measure that would have made it a felony to cause the death of an “individual human organism” from fertilization to birth without the consent of the pregnant person. When asked why, he stated: “There was some definite concerns about in vitro fertilization and the negative effects” the bill could have on the practice of IVF.
However, politicians like Pence and Zaun cannot protect the right to IVF and take steps to limit abortions as they would like. That is because in some cases IVF includes the selective abortion of one or more fetuses. This procedure is also called multifetal pregnancy reduction (MPR) or selective fetal reduction (SFR) or selective abortion (SA). It is done because it is proven to improve maternal outcomes and the outcomes of the surviving fetus.
Due to the requirement that our laws must be applied equally under similar circumstances — called “equal protection” — abortion cannot be prescribed by law in cases not involving IVF, but not in cases involving IVF. An abortion is an abortion, regardless of its motive or purpose.
As legal scholar San Juanita Gonzalez has observed, “if we believe states have an interest at conception, as (proponents of abortion restrictions) often assert, then there is no difference between the embryo disposed of through IVF and the embryo disposed of through abortion.” At least one court has decided that a law that treated abortion at a clinic different than an abortion as part of IVF treatment violated the Equal Protection Clause. Even if not a denial of equal protection, any inconsistent legal treatment of these two cases would be schizophrenic indeed.
Now, the Republican Party is on an extremely slippery slope and its leaders are all over the board with respect to when during the human gestation timeline abortion should be restricted. Republican Iowa Gov. Kim Reynolds says six weeks. Republican Sen. Lindsey Graham says 15 weeks. Donald Trump “privately” says 16 weeks. Republicans in Arkansas want restrictions after 18 weeks. The party is beginning to resemble Europe where the time when abortion may be prescribed by law varies from 14 weeks (France) to 18 weeks (Sweden), to 24 weeks (Netherlands). In Roe v. Wade, the U.S. Supreme Court used the “viability standard” of about 24 to 28 weeks. In Iowa, that time — since last checked — is 20 weeks. Republican Gov. Terry Branstad signed the 20-week abortion bill in 2017, including exceptions for the life and health of the women.
Given the Republican reaction to the Alabama decision, it might be expected that the timing of selective reduction in IVF might inform their position. However, true to form, Republican positions are not informed by sound science or medical practice. If it were, and IVF was to remain a fully protected practice, the Republican “line-drawing” would have to extend to 19 weeks’ gestation — only one week sooner than Iowa’s current 20-week period. While medical practice seeks to perform MPR earlier, if possible (around 11 to 14 weeks), medically necessary MPR may occur up to 19 weeks in some cases, as studies show. The data in one study, published in Reproductive Science in 2022, showed most selective abortion procedures occurred in the second trimester at 13 to 19 weeks.
MPR is not such an extremely rare occurrence that Republicans may simply ignore, if they support IVF. One recent medical report stated: “The prevalence of multiple pregnancies has increased significantly in recent decades, mainly due to the widespread use of assisted reproductive technologies as well as the trend of increased reproductive age in recent years.” Even if rare, however, selective reduction as an outcome of IVF up to at least 19 weeks is a reality. If Republicans like Mike Pence truly “fully support infertility treatments,” then they must make room for MPR in their abortion policies. If they do, under the principles of equal protection, that room must also include elective abortion of a single fetus up to at least 19 weeks unrelated to IVF.
In the end, the difference between the Republican and Democratic parties on when abortion may be prescribed by law may come down to only a few weeks, with exceptions remaining an area for disagreement. It may now be confidently said, however, those who want an absolute ban on abortion with no or only narrow exceptions have no political home in American or Iowa politics. The Republican Party has now recognized it is politically impossible to maintain such a position, an easy position to maintain before Roe v. Wade was reversed because it carried no political consequences.
Yet, right-wing Republicans who push to restrict abortions just a few weeks earlier than 20 weeks will declare themselves “prolife” and call those who support 20-weeks with exceptions for the health of the mother “baby killers” — which would now include former Republican governor and Catholic Terry Branstad. So it goes. To avoid the endless debate and related divisiveness, reasonable politicians on both sides must lead and seek a compromise as soon as possible. Twenty weeks, anyone?
This piece did not address the religious or moral issues related to abortion, whether because of IVF or not. First, we need to consider the rational merits of the positions, not their moral or religious ramifications. To do so does not diminish the moral or religious arguments about abortion, but it will help focus our attention on the issue based strictly on political, medical, social and legal realities. Then, we may agree on the best policy given those constraints, and only after that, decide who among us has the moral certainty to cast the first stone.
Tom Walton is an attorney.
This article originally appeared on Des Moines Register: Support for IVF is impossible to square with pro-life beliefs
