The Battle to Protect IVF

I started my family more than two decades ago via in vitro fertilization (IVF), and I've watched with growing alarm as the U.S. Supreme Court's Dobbs decision that overturned federal abortion rights two years ago has also endangered access to this common fertility technique. Jennifer Klein, director of the White House Gender Policy Council, spoke with me about the threat and the Biden administration's response.

The risk to IVF became clear this year when the Alabama Supreme Court ruled on February 16 that frozen embryos should be considered "children." Almost all IVF providers in the state immediately halted services, fearful of liability. State legislation was quickly passed to provide legal immunity to IVF providers and patients—but some lawmakers and advocates remain concerned that it still does not sufficiently address the state's constitutional definition of embryonic personhood, as CNN reported (3/7/2024).

The question of embryos also played into the June 12 vote by the Southern Baptist Convention, representing the country's largest Protestant denomination, to condemn the current practice of IVF because it may create excess embryos that are frozen or destroyed.

A whopping 86% of Americans believe that IVF should be legal, however, according to a CBS News/YouGov poll in early March. "These attacks on IVF are a direct result of Republican elected officials advancing a really extreme agenda, which is out of step with the vast majority of Americans," Klein said. "This is not a controversial issue, although it seems to have become one."

On February 29, Senator Tammy Duckworth (D-IL), an Iraq War veteran who used IVF to have her two daughters, sought Senate approval for a bill she had introduced with Senator Patty Murray (D-WA) to establish a federal statutory right to IVF and—critically—to an individual's use or disposition of their gametes and embryos. 

Duckworth attempted to move the bill forward via unanimous consent, but Senator Cindy Hyde-Smith (R-MS) blocked it, asserting in a statement her "strong support of IVF," but expressing concern that the bill ran counter to "our goal to protect life and religious freedoms."

Senators Ted Cruz of Texas (R-TX) and Katie Britt (R-AL) then on June 12 attempted a unanimous consent vote on their own IVF Protection Act, which would have withheld Medicaid funds from states that prohibit IVF, but said nothing about the disposition of gametes/embryos. Klein explained that the bill "allowed restrictions on embryo storage, implantation and disposal, so it wouldn't actually provide meaningful access to fertility services." Murray therefore blocked it.

Democrats countered with the Right to IVF Act, introduced in early June by Senators Duckworth, Murray, Cory Booker (D-NJ), Mark R. Warner (D-VA), and Tim Kaine (D-VA). This incorporated Duckworth and Murray's earlier IVF bill along with three other bills, which as a whole would create a federal right to IVF access and gamete/embryo disposition, lower costs by requiring insurers to cover IVF, and further expand IVF coverage options and access for veterans, service members, and federal employees. Senate Republicans, however, blocked that bill on June 13.

Klein observed that Republicans had also blocked a bill on June 5 that would have guaranteed a federal right to access contraception. She is adamant that "These attacks on reproductive freedom are a direct result of the overturning of Roe vs. Wade" and leaving matters of reproductive health to the states. Such attacks "stand in stark contrast with this administration," she said, noting that on the day of the Dobbs decision, President Biden committed to signing federal legislation to restore the protections of Roe vs. Wade as soon as a bill reaches him. 

"In the meantime," Klein said, "we're doing everything we can to protect access to reproductive healthcare." This includes three executive orders and a presidential memorandum "to protect access and expand access to affordable, high-quality contraception, including over-the-counter birth control; strengthening privacy protections for patients and doctors; supporting and expanding access to medication abortion; supporting access to reproductive healthcare for service members and veterans; and supporting the ability to travel for reproductive healthcare."

The administration has also taken two actions specifically to protect IVF, she said. First, it "expanded eligibility for IVF services for certain service members and veterans," although the cause of infertility must still be a service-related health condition. Statutory restrictions mean that further expansion must be through legislation, one of the things the Right to IVF Act would have provided.

Second, the administration "expanded access to IVF benefits and coverage for federal workers," something she hopes can also serve as "a model for other large employers across the country, because one of the major issues with IVF is affordability and insurance coverage." She noted that a majority of states (29) don't require private insurance to cover any fertility services.

While any administration is limited in what it can do in the absence of Congressional legislation, Klein said that "We are working really closely with Democrats on the Hill to support their efforts."

"I remain optimistic that [IVF] is a bipartisan issue," she asserted. Citing a March 2024 Navigator Research study, she explained, "Four in five Americans say IVF should be legal, the vast majority of Americans believe that Roe vs. Wade should not have been overturned and support reproductive freedom, and we've seen that in ballot initiatives across the country in a very diverse set of states," including Kansas, Michigan, Missouri, California, and New York. "When people have the opportunity to make their voices heard directly, they are quite clear that they want the ability to protect access to reproductive healthcare."

She urged people to continue sharing their views, adding, "As we've seen from unlikely people in unlikely states, people are speaking out to make it clear that they want the right to make decisions about their own body free from politicians. There are many more opportunities to do that."

Dana Rudolph is the founder and publisher of Mombian (mombian.com), a two-time GLAAD Media Award-winning blog and resource directory, plus a searchable database of 1,500+ LGBTQ family books.