Carrie McNair of Mobile holds a sign saying “You can’t cuddle an embryo” at a rally in support of in vitro fertilization access at the Alabama Statehouse in Montgomery, Alabama, on Feb. 28, 2024. The rally took place before scheduled committee hearings in the Alabama Legislature on legislation to protect IVF. (Brian Lyman/Alabama Reflector)
WASHINGTON — U.S. Republican Sen. Cindy Hyde-Smith of Mississippi blocked a bill from passing Wednesday that would have preserved access to in vitro fertilization nationwide, stalling a push by Democrats following a landmark Alabama state Supreme Court decision.
The court ruled earlier this month that frozen embryos counted as children under state law and parents could collect damages for their destruction, putting IVF programs in the state on hold.
Illinois Democratic Sen. Tammy Duckworth asked for unanimous consent to pass the IVF bill, a process that allows any one senator to prevent it from moving to the House.
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Duckworth has said she’ll press for a roll call vote on the bill at a later point to put every senator on record.
“My girls are my everything,” Duckworth said, referring to her two daughters. “They likely would have never been born if I had not had access to the basic reproductive rights that Americans, up until recently, had been depending on for nearly a half century.”
Duckworth said that after her service in Iraq, she struggled with infertility.
Hyde-Smith argued that the bill was “overreaching,” and contained provisions with which she disagreed.
“I support the ability for mothers and fathers to have total access to IVF and bring new life into the world, and I also believe that human life should be protected,” Hyde-Smith said.
She also argued that the Alabama case did not ban IVF. However, clinics in the state have paused treatments following the ruling.
Duckworth defended her bill, saying that it protects individuals who are seeking IVF technology without fear of being prosecuted, protects the rights of physicians to provide that treatment and allows insurance companies to cover reproductive technology.
“It simply says you have a statutory right, should you choose to pursue assisted reproductive technology, that you would be able to do so,” Duckworth said.
‘These women have had their dreams shattered’
Washington state Democratic Sen. Patty Murray slammed Republicans for blocking the unanimous consent request to pass the bill.
“These women have had their dreams shattered because Republicans believe a frozen embryo kept in storage at an IVF clinic is the same and should have the exact same rights as a living, breathing human person,” Murray said.
Sen. Tim Kaine, a Virginia Democrat, said that the first child born through IVF in the United States was in 1981, in Norfolk, Virginia. He added that it’s estimated that 12 million people were born through IVF.
“She’s raising her own family today,” Kaine said. “What could be more pro-life than in vitro fertilization?”
Oregon Democratic Sen. Ron Wyden said that the repeal of Roe v. Wade has led to an “onslaught of court rulings just like this one in Alabama.”
These women have had their dreams shattered because Republicans believe a frozen embryo kept in storage at an IVF clinic is the same and should have the exact same rights as a living, breathing human person.
– Sen. Patty Murray
Nevada Democratic Sen. Catherine Cortez Masto said that when the Supreme Court overturned Roe v. Wade, “we could see from a mile away that IVF was in danger.”
“It will not stop with Alabama,” Cortez Masto said. “Attacking IVF was yet another chance for anti-choice Republicans to erode women’s rights in this country.”
Britt: Alabama taking action
Alabama Republican Sen. Katie Britt said in a brief interview with States Newsroom on Wednesday afternoon that her home state should be left to address the issue.
“So Alabama is, right now as we speak, working to protect IVF,” she said.
Alabama state lawmakers advanced three bills out of committee on Wednesday that would protect access to IVF in that state.
The U.S. Senate’s debate over access to IVF came just hours after the Senate Budget Committee held a hearing on “the economic harms of restricting reproductive freedom,” which included testimony on access to the procedure.
Caitlin Myers, John G. McCullough professor of economics at Middlebury College in Vermont, told the committee that access to “reproductive autonomy isn’t just about young people avoiding parenthood until they’re ready, it’s about all people being able to become parents when they want to.”
“The economic evidence suggests that it allows women to spend more time seeking the right partner, investing in education and investing in their careers,” she said. “And in a country and moment when we’re increasingly seeing people delay parenthood, a lack of access to IVF is very concerning from an economic perspective.”
44 co-sponsors with Duckworth
The Duckworth bill, dubbed the Access to Family Building Act, is nine pages long and aims to provide protections for patients and health care providers.
Duckworth introduced the bill in mid-January with Wisconsin Democratic Sen. Tammy Baldwin, Washington state’s Murray and New York Democratic Sen. Kirsten Gillibrand as original co-sponsors.
Support for the legislation began increasing this week, with the number of co-sponsors rising to 44 as of Wednesday.
The bill says that it would bar limitations on “assisted reproductive technology services” that are “more burdensome than limitations or requirements imposed on medically comparable procedures, do not significantly advance reproductive health or the safety of such services and unduly restrict access to such services.”
Assisted reproductive technology is defined in the legislation as what’s included in Section 8 of the Fertility Clinic Success Rate and Certification Act of 1992.
That law’s definition says it encompasses “all treatments or procedures which include the handling of human oocytes or embryos, including in vitro fertilization, gamete intrafallopian transfer, zygote intrafallopian transfer, and such other specific technologies as the Secretary may include in this definition, after making public any proposed definition in such manner as to facilitate comment from any person (including any Federal or other public agency).”
GOP senators reject congressional action
Republican senators, speaking briefly with States Newsroom on Tuesday, all rejected the idea of Congress stepping in now to set a nationwide policy on access to IVF. And some expressed concerns with how the bill was written.
Utah Republican Sen. Mitt Romney said he would need to look over Duckworth’s bill in detail, but said his “understanding is it’s just substantially broader than dealing with IVF.”
On IVF access generally, Romney said, he didn’t believe that federal lawmakers had “enough of a window on that at this stage in that it’s not been an issue for any state other than Alabama.”
“And the Alabama Legislature, as I understand it, is attempting to deal with this legislatively, so I don’t think it’s an issue elsewhere,” Romney said.
West Virginia Republican Sen. Shelley Moore Capito said that while she supports everyone having access to IVF, she’s not sure Congress should approve legislation.
“I think we need to preserve access to IVF for families and folks suffering from infertility,” she said. “But I think this is, right now, a state issue in Alabama. And I think they ought to fix it there first.”
Indiana Republican Sen. Todd Young said access to IVF “has to be protected” and that he would look into supporting legislation to do just that, though he said he hadn’t yet read Duckworth’s bill.
“I would consider any proposals that are put forward here,” Young said. “I have not read through the particulars on that. Some have characterized it as overbroad.”
“But I would entertain legislation to preserve that important prerogative for women and families,” Young said.
GOP senators say it is a state issue
Kansas Republican Sen. Roger Marshall said he believes the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, which overturned the constitutional right to an abortion, sent issues like IVF to state lawmakers.
“I think that the Dobbs decision clearly states that this should be a decision made at the state level,” Marshall said. “I encourage the state legislators to support IVF. It’s a beautiful thing, hundreds of babies are delivered every day across the country because of IVF.”
The U.S. Supreme Court’s ruling in Dobbs said the “Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.” That includes Congress.
Marshall said that Republicans throughout the country should “all lean into it that we are the pro-family party, and we should celebrate IVF.”
“It’s an incredible technique, something that I’ve participated in… close to 100 or more cycles and just lots of beautiful children I know from IVF,” Marshall said.
Iowa Republican Sen. Joni Ernst said that it’s “not yet” time for Congress to step in with nationwide legislation on IVF, though she said it’s important that Americans have access to the process.
“I think the message that we have is that families should have access to IVF. That’s extremely important,” Ernst said. “I have a friend who has twin daughters because of IVF. So I hope we can work through this.”
Alabama Republican Sen. Tommy Tuberville said the issue should be left to state lawmakers.
“Let them do it, just like they’re doing abortion. Let everybody get a chance to vote on it,” Tuberville said. “I think it will work a lot better than people complaining up here. We need to get our act together and worry about all the things that we can control.”
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