Republicans Play Down State Efforts To Ban IVF As They Block Federal Bill To Protect It

As Senate Republicans sought to explain away why they wouldn’t support the Democrats’ in vitro fertilization bill — an effort to protect and expand nationwide access to fertility treatment, including IVF — they shrugged off the idea that a real threat existed. IVF, they claimed, was certainly not imperiled at the state level.

“I certainly don’t hear that anywhere. I don’t see it anywhere. I’ve never heard anybody ever suggest that,” Sen. Roger Marshall (R-KS), an obstetrician, told TPM on Thursday when asked if he was worried about the possibility of states taking away access to IVF.

When approached with the same question, both Sens. Josh Hawley (R-MO) and Tommy Tuberville (R-AL) also told TPM, “no.”

Yet in Marshall and Hawley’s states, bills that would threaten IVF have been introduced in the state legislature. In Tuberville’s state of Alabama, the Supreme Court handed down a decision earlier this year that put a halt to IVF treatment, sending the state legislature scrambling to respond.

The Senate took up a procedural vote on Democrats’ Right to IVF Act on Thursday afternoon. Democrats needed 60 votes to overcome the filibuster and proceed to a vote.

But just like they did in last week’s contraception vote, Senate Republicans blocked the consideration of the bill. Only Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AK) voted with the Democrats.

At the core of the issue is the concept of fetal personhood — a decades old, conservative belief that fetuses (and, in some cases, embryos) are people, with all the same rights as children or adults. Versions of the concept have cropped up throughout conservative politics in recent years, from anti-abortion protests to state legislatures to the Supreme Court’s Dobbs decision that allowed states to ban abortion.

Some versions of fetal personhood ideology clash with IVF: In IVF, patients often create more fertilized embryos than they will use as a part of the medical process because some embryos may turn out to be unviable. Often, leftover embryos are donated for medical research or destroyed, as storing them in facilities indefinitely could be quite expensive.

At least five states — Kentucky, Louisiana, Ohio, South Dakota, Texas — already have language around personhood in state law, according to a tally by the legal and civil rights group Pregnancy Justice. And in 2024 alone, at least 12 states have introduced personhood bills that could give some of the same rights to embryos and fetuses that generally protect a person, according to the Center for Reproductive Rights.

The February Alabama ruling provides a prime example of the effects this interpretation of the law can have: After the state Supreme Court found that stored embryos can be afforded the same legal protections as children under the Wrongful Death of Minor Act of 1872, access to IVF was hindered.

The outcry in response to that decision led to state legislators passing a law that provided civil and criminal immunity to IVF providers. But during the two weeks between the court’s decision to the passage of the legislation, many in the state were unable to access IVF treatment. Experts, meanwhile, worry that the exception carved out by the state legislature simply slaps a band-aid on the state court’s ruling while its underlying legal interpretation remains.

“There very much is this a threat from the state level because when you define a fertilized egg as a human child, you make the process of IVF potentially manslaughter or murder,” Sen. Tammy Duckworth (D-IL) told TPM when asked about Senate Republicans’ dismissiveness on the issue. “In Alabama, as you see, they felt the need to come out and say, ‘Hey, we’re just not going to prosecute you,’ which is what allowed those IVF clinics to start up again, but that doesn’t last beyond the current administration. They can change the rules anytime.”

When pressed on the ruling in Alabama and how quickly a new set of legislators could reverse that decision, Marshall told TPM he has “faith in the American public” to not elect a legislature that would reverse that law.

“It seems to me 80%, maybe, Americans support in vitro fertilization,” Marshall said. “I just can’t imagine electing a state House or a state Senate that would support that. I just can’t imagine it. And, you know, when in doubt, I like to leave things up to the state … I think that this should be a state decision.”

Some Republican senators TPM spoke with ahead of the Thursday afternoon vote even claimed that the Democrats’ bill is just an attempt to baselessly “fearmonger” ahead of the November elections.

“Many parents and hopeful parents are confused and frightened especially in the wake of the Alabama Supreme Court decision but also because more than a few Democrats are deliberately stoking those fears,” Sen. Ted Cruz (R-TX) told reporters on Wednesday.

He also claimed that the bill is a purely political move for Democrat’s as they only care about the bill because “they want to spend millions of dollars running campaign ads suggesting the big bad Republicans want to take away IVF.”

Exhibiting a similarly dismissive sentiment about the reality of the threat, Sen. Rick Scott (R-FL) told reporters on Wednesday that he will not support Democrats’ bill because “IVF is legal everywhere.”

“It doesn’t matter,” he added dismissively. “IVF is legal everywhere.”

In place of the Democrats’ bill, Scott has offered a resolution attesting to the Senate’s “support for Americans who are starting and growing families through in vitro fertilization.”

Meanwhile, Sens. Cruz and Katie Britt (R-AL) put forward a bill that would make states ineligible to receive Medicaid funding if they ban IVF. Cruz and Britt even tried to one up Senate Democrats on Wednesday by bringing their bill to the floor, ahead of the Democrats, and asking for unanimous consent to pass it.

But Democrats blocked that effort, decrying the ways in which the bill fell short of actually protecting IVF.

The Republican “bill allows for states to push for regulations that could severely reduce the standard of care for IVF treatment, such as restrictions on how many embryos are created and what individuals can do with these embryos — decisions that should only be made between patients and their doctors, based on science and clinical guidelines,” Sen. Patty Murray (D-WA) said on the Senate floor Wednesday as she objected.

Republicans are “trying to mislead people and run away from the fact that their fundamental definition of a fertilized egg as a human child is at the core of the problem that we have here,” Duckworth told TPM.