Republicans want to stay away from the IVF imbroglio. Abortion foes won’t let them.
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Antiabortion lawmakers on Capitol Hill are facing a quiet pressure campaign by some of their most influential supporters to ramp up their defense that frozen embryos should legally be considered people and advocate for legislation that would codify a central driving force of antiabortion policies.
In the wake of the Alabama Supreme Court ruling that frozen embryos created and stored for in vitro fertilization treatments are “unborn children” - and that those who destroy them could be held liable under a wrongful death law - ardent abortion opponents at the Heritage Foundation and Susan B. Anthony Pro-Life America, among other groups, have sought to push lawmakers and state legislatures toward regulating IVF treatments in the United States. That could include limiting the number of embryos created during a round of IVF, legally codifying the recommended guidelines for embryos transferred during IVF cycles and limiting the use of pre-implantation genetic testing.
Opponents of the effort argue that the end game is an overly burdensome regulatory environment that could eventually lead to IVF clinic closures and is part of the broader creep toward legislation that puts limits on reproductive care and abortion.
The politics of reproductive health issues have left Republicans flummoxed - in particular the Republican House majority, which has wrestled with advancing its antiabortion offensive - since the Supreme Court overturned Roe v. Wade. Antiabortion stalwarts cheered the ascension of House Speaker Mike Johnson (R-La.), a longtime opponent of abortion; but since taking the gavel, he has clearly stated that he did not have the cultural nor political consensus to bring a federal abortion ban to the House floor for a vote. A Gallup poll conducted last year showed a record-high 69 percent of Americans favor legal abortion in the first three months of pregnancy, and a recent CBS News-YouGov poll found that an even higher 86 percent of Americans think IVF should be legal.
Still, talking points distributed to congressional lawmakers by the Heritage Foundation in recent weeks encouraged members to talk about the Alabama decision as a reassurance for parents who rely on IVF that “their children will receive the same legal protections as everyone else’s” and suggested that lawmakers call for every state legislature to “establish clear legal framework for the industry that … limits the destruction of unborn human life.”
The memo also pointed to other countries that could serve as a model for IVF regulation in the United States and that “prohibit the wanton production and destruction of human embryos,” like Germany, Italy, France, New Zealand and Australia.
“A lot of members are still wrapping their head around things and trying to get a good grasp on what good regulation would look like - how do we reconcile a pro-life commitment to protecting an embryo from the moment of conception with how IVF is routinely practiced?” said Emma Waters, a research associate at the Heritage Foundation’s DeVos Center for Life, Religion, and Family.
After backlash to the Alabama court decision, the state legislature passed a bill that provides civil and criminal immunity to IVF patients and clinics. Susan B. Anthony Pro-Life America in a statement blasted state lawmakers for that decision and encouraged Congress to “think critically” about addressing “ethical, safety, and accountability concerns.”
“Congress should be more thoughtful in its crafting of IVF legislation than Alabama, where their legislature recently gave blanket immunity to IVF clinics - even for rogue practitioners who switch embryos, fail to follow basic safety standards, or negligently destroy embryos desired by infertile couples,” a spokesperson said in a statement. “These are real scenarios for which families in Alabama will have no recourse.”
But the principal piece of antiabortion legislation that GOP lawmakers have rallied behind for several years, and encompasses IVF, has also been caught in the fallout of the Alabama ruling. The Life at Conception Act, first introduced by House Republicans in 2021 and again in 2023, recognizes a fertilized egg as a human being entitled to legal protections under the 14th Amendment and would ban nearly all abortions nationwide. Unlike the Senate version of the bill, the House version does not designate an exception for IVF, meaning access to the procedure would not be protected if the bill is signed into law. The draft bill does, however, specify that it does not “authorize the prosecution of any woman for the death of her unborn child.”
Some House Republicans have recently backed away from the bill that had previously been viewed primarily as a messaging vehicle but has now become a political liability. Yet for antiabortion advocates, the bill does not go far enough in addressing IVF, lacking clear guidelines around embryos. Some prominent voices in the antiabortion movement have been concerned by what they view as a lack of consistency among GOP lawmakers who are now shying away from the issue.
“I’m concerned that legislators who are clear in saying that they believe life begins at conception and they have a pro-life stance are not understanding what is at stake with the way IVF is practiced, which is to treat human embryos as really disposable,” said Joseph Meaney, the president of the National Catholic Bioethics Center. “If you have one stance, then you should really keep another stance.”
Rep. Chris Smith (R-N.J.), co-chair of the House Pro-Life Caucus and one of the House’s leading antiabortion advocates, said he wasn’t sure yet what a regulatory framework around the reproductive technology meant in specific terms but suggested that certain practices related to IVF be outlawed or prohibited. He also noted that he has been a longtime proponent of the movement to adopt embryos that are no longer wanted by the biological parents and downplayed the political risks associated with tackling the topic.
“The problem with the IVF issue is that there’s nothing outlawed,” Smith said in an interview with The Washington Post last week. “There is a concern that people mistreat or destroy so-called ‘spare embryos.’ … There’s no such thing as a spare human being. You’re trying to protect them to the greatest extent possible and don’t let somebody just pour them down the drain.”
Smith - a 43-year incumbent who represents a ruby-red district - has largely dedicated his career in Congress to the antiabortion movement, introducing numerous bills to limit the use of federal funding for abortion, both domestically and abroad.
But even some of Smith’s counterparts in the House Pro-Life Caucus have steered clear of staking out a position on regulating IVF in recent weeks. In 2016, Pro-Life Caucus member Rep. Andy Harris (R-Md.) introduced an amendment to prohibit the disposal or destruction of embryos created through fertility treatments provided by the federal government for veterans with injuries that impacted their reproductive system. The proposal ultimately failed, and critics - and even some GOP lawmakers - at the time argued that it would severely restrict fertility treatments or negatively impact the health of patients who might be potentially forced to implant multiple embryos at once. But Harris declined to answer questions from The Post this month about whether IVF should be regulated.
Johnson told reporters at the annual Republican issues conference in West Virginia on Thursday that IVF is something that should be protected - but in an ethical way. He punted the issue to the states, however, asserting that it is “not my belief that Congress needs to play a role here,” he said. “I think this is being handled by the states.”
For vulnerable GOP lawmakers facing competitive reelection races this cycle, Johnson’s arms-length approach has provided a welcome respite for members wary of alienating voters. Rep. Michelle Steel, an incumbent Republican up for reelection in California’s 45th District, removed her support for the Life at Conception bill this month over questions about whether it would ban IVF. In an op-ed for the Orange County Register, she spelled out her belief that “life begins at conception” and maintained that she is “pro-life with exceptions for rape, incest, and the health and life of the mother” but came out against federal restrictions on IVF.
“Having experienced it firsthand in starting a family, I am an ardent supporter of IVF,” Steel wrote. “I believe nothing is more pro-life than helping families have children and I do not support federal restrictions on IVF.”
Rep. Richard Hudson (R-N.C.), who chairs the National Republican Congressional Committee, said in an interview on Thursday that he advised his colleagues to “talk about what you believe” and warned that avoiding the topic only allows Democrats to define the GOP position. “My advice is that every candidate, every member ought to tell voters what your position is, what you actually believe, and you ought to do it with empathy, recognizing what a tough situation this is for the woman, for the families going through it,” Hudson added.
Steel co-sponsored a nonbinding resolution with Reps. Lori Chavez-DeRemer (R-Ore.) and Juan Ciscomani (R-Az.), who also represent competitive districts, that expressed support for access to IVF. Only one GOP lawmaker has so far come out in support of legislation that would override state restrictions and provide federal protections for IVF. Rep. Marcus J. Molinaro (R-N.Y.), who represents a district President Biden won in 2020, signed on to the legislation of Rep. Susan Wild (D-Pa.) on Wednesday.
Those who follow suit are likely to be targeted by outside groups: Susan B. Anthony Pro-Life America panned a separate nonbinding resolution circulated by Rep. Nancy Mace (R-S.C.) for leaving “no room for reasonable laws like the one in Louisiana that for decades has protected human embryos while also allowing IVF.” Louisiana fertility clinics have for decades circumvented a ban on the destruction of embryos by shipping embryos out of state for storage - what reproductive rights experts view as a burdensome and expensive workaround that creates hurdles for those seeking care.
Sen. Cindy Hyde-Smith (R-Miss.), who chairs the Senate Pro-Life Caucus, blocked a bill last month to protect nationwide access to IVF and defended the Alabama court decision while saying she supports access to IVF. Hyde-Smith’s objection to the approval of the Senate measure came on the same day the U.S. Conference of Catholic Bishops, an influential group of conservative American Catholics, wrote to Senate lawmakers calling on them to oppose a bill.
“Contrary to what some have claimed, a position that supports legal enshrinement of IVF, however well-intended, is neither pro-life nor pro-child,” a quartet of bishops who signed the letter wrote. “Approaches such as investing in life-affirming research on infertility, or strengthening support for couples who desire to adopt, would be better to explore.”
Democrats have quickly mobilized to centralize the issue ahead of the November election, calling congressional Republicans out for what they describe as toothless statements of support for IVF, while Republican-controlled state legislatures have passed bills that may impact access to fertility treatments. During his State of the Union address last week, President Biden called on Congress to establish federal protections for IVF and highlighted the story of a guest whose IVF treatment was impacted by the Alabama Supreme Court decision. The Democratic Congressional Campaign Committee recently targeted Reps. Mariannette Miller-Meeks (R-Iowa) and Zachary Nunn (R-Iowa), who both represent swing districts, for declining to sign on to legislation protecting fertility treatments after the Iowa House passed a bill that criminalizes the death of “an unborn person.”
Miller-Meeks did not respond to request for comment, and a spokesperson for Nunn passed along a general statement of support for IVF but did not directly address whether the congressman supports the legislation passed in the Iowa House, where he previously served. “As a father of six, I’ll never have a more important title than ‘Dad,’” Nunn said in the statement. “I believe anyone who is hoping to start their family should absolutely have access to the tools to do so, including IVF, fertility treatments, or adoption.”
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Marianna Sotomayor contributed to this report.
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