WASHINGTON — Senate Republicans are struggling to respond to an extreme Alabama Supreme Court ruling effectively halting in vitro fertilization in the state as Democrats plan a new effort this week to protect access to IVF and other fertility treatments nationwide.
On the one hand, Republicans maintain that they support the continued use of IVF, calling it both pro-family and pro-life. But on the other hand, many in the GOP agree with the central premise of the ruling that found that frozen embryos are children with equal rights, a contradictory position that now has them on the defensive on an issue that is supported by over 80% of Americans, including a majority of Republicans.
“That’s really at the crux of the ethics of it,” Sen. Marco Rubio (R-Fla.) told reporters on Tuesday. “How do our laws recognize the dignity of human life but also understand that the procedure that it enables is a life-creating procedure?”
“No one has IVF to destroy life, they have IVF to create life,” he added. “Unfortunately, you have to create multiple embryos, and some of those are not used, then you’re now in a quandary.”
Sen. Joni Ernst (R-Iowa) said she supported access to IVF. When asked if she considered frozen embryos children, she said, “I don’t want to say they’re not children.”
The Alabama Supreme Court released a decision earlier this month that grants embryos the same legal rights as children. The ruling set IVF patients and providers in the state into a tailspin, with three of the largest fertility clinics announcing that they paused IVF services to avoid legal risk in the wake of the decision.
The decision centered on a 2020 lawsuit in which three couples sued an Alabama fertility clinic for the “wrongful death” of their frozen embryos, using a civil law dating back to 1872 that allows parents to sue over the death of a child. A circuit court judge had dismissed the lawsuit in the wrongful death suit, ruling that the statute did not apply to frozen embryos, but the Alabama Supreme Court reversed that decision. A majority of the justices ruled in favor of defining embryos as children under the wrongful death statute.
Democrats have been connecting the dots between abortion bans and how they could impact fertility treatment for years. Sen. Tammy Duckworth (D-Ill.), who had both of her children using IVF, last month introduced the Access to Family Building Act which would create a federal right to IVF and ensure that anyone can access such care without reprisal from their home state.
Duckworth said in a Tuesday press conference that she plans to call for unanimous consent to pass her bill on the Senate floor on Wednesday.
“If Republicans truly care about the sanctity of families, then they need to show it by not blocking this bill when I bring it to the floor tomorrow,” Duckworth said at the press conference.
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Senate Majority Leader Chuck Schumer (D-N.Y.) criticized Republicans during Duckworth’s Tuesday presser, pointing out that the repeal of Roe is what led to attacks on fertility treatments: “These Republicans are like the arsonist who set a house on fire and then said, ‘Why is it burning?’”
Duckworth tried to pass similar legislation in 2022 after the Supreme Court struck down Roe v. Wade, but her effort was blocked by Sen. Cindy Hyde-Smith (R-Miss.).
It’s not clear yet whether any Republican senator will object to Duckworth’s request this time around. Several GOP senators on Tuesday suggested that they were waiting to see how legislators in Alabama would address the situation before deciding whether to support Duckworth’s bill. Others said they didn’t know if federal protections are needed at all.
“Alabama will pass a law to protect IVF,” Sen. Katie Britt (R-Ala.) told reporters.
Sen. Cynthia Lummis (R-Wyo.) said “it could be justified to say that the rights of a child do not apply to an in vitro situation, that they would only apply in vivo,” but she declined to endorse the need for federal legislation to protect IVF.
“It’s gonna take some people who are really applying a lot of time and thought to this to figure it out … but whatever is concluded, we desperately want to protect in vitro fertilization,” she insisted.
Rubio added that there ought to be “guidelines” to clarify the use of IVF “so that everyone feels there’s not any kind of uncertainty that would threaten the availability of these fertility treatments.” But he, too, said he wasn’t certain if that should happen at the state or the federal level.
The GOP has been twisting itself into knots in the wake of the Alabama court ruling. The presumptive 2024 GOP presidential nominee, Donald Trump, came out firmly in favor of IVF last week, calling on Alabama to pass legislation to protect it even though the ruling wouldn’t have been possible without his appointment of Supreme Court justices who struck down Roe, an accomplishment he brags about on the campaign trail.
In the House, more than 120 Republicans endorsed the Life at Conception Act, a bill that would have effectively nationalized the Alabama court ruling. Now, many of those lawmakers are attempting to moderate on the issue by voicing support for IVF.
“The Republicans are in a real bind because they have all this really extreme, right-wing fringe legislation that essentially prohibits IVF,” Sen. Richard Blumenthal (D-Conn.) told HuffPost. “They have totally failed to come to terms with their inconsistencies and sanity on this issue, and it’s now coming home and hitting them because their position is completely untenable.”
“They’re trying to duck and dodge every which way, but there’s no avoiding the basic inconsistency,” he added.