Americans want to protect IVF amid battles over abortion, but Senate at odds over path forward

Washington — Americans appear to be in rare agreement when it comes to IVF, with surveys indicating widespread support for safeguarding access to the fertility treatments. But how Congress could act to secure those protections amid perceived threats in states is another question. And in the Senate, lawmakers appear to be at odds over a path forward. 

An Alabama Supreme Court decision earlier this year that deemed that embryos are children under state law and prompted providers to halt fertility treatments in the state brought IVF to the national attention. Though the state legislature moved to protect access to the procedure, the development raised concern about similar moves elsewhere. 

And when Democrats tried to blame Republicans for opening a new front in the battle over reproductive rights, the GOP moved quickly to express support for the fertility treatments as the possibility of restrictions on IVF access threatened to become a liability in November's election. 

But in the Senate, dueling bills to protect access to the fertility treatments illustrate the lingering partisan divide. 

This week, Republican lawmakers introduced new legislation to protect access to IVF, urging bipartisan support. But the bill was quickly met with pushback by Democrats, who questioned its scope and mechanism while pointing to their own idea for a path forward. 

"We have a much better proposal and Republicans ought to support it," Senate Majority Leader Chuck Schumer told reporters when asked about the GOP bill this week, adding that a proposal by Democratic Sen. Tammy Duckworth has been "carefully done."

The GOP bill, called the IVF Protection Act, would require that states "do not prohibit in vitro fertilization" as a condition to receiving federal funding for Medicaid, which provides health insurance for low income people. The bill makes clear that it doesn't compel an organization or individual to provide IVF services, and it doesn't preclude states from otherwise regulating IVF. 

But the bill's prospects in the Democrat-controlled Senate were quickly dashed. 

Shortly after Republican Sens. Ted Cruz of Texas and Katie Britt of Alabama introduced the legislation, Duckworth, an Illinois Democrat who's also introduced IVF legislation, criticized the bill, claiming that it would "incentivize deep red states to defund Medicaid and ban IVF at the same time."

Cruz pushed back on the claim, telling CBS News that it's a "ludicrous charge" because no state would forgo the federal dollars, while arguing that spending conditions are a common means of imposing federal requirements. 

"Democrats want to fear monger on the question of IVF and a straightforward and simple bill that protects IVF at the federal level terrifies them, because it takes away the political issue that they want to use to frighten voters," Cruz said, adding that "anyone who genuinely supports IVF should be an enthusiastic supporter of this bill."

But Democrats also argue that the bill's definition of IVF, "the practice whereby eggs are collected from ovaries and manually fertilized by sperm, for later placement inside of a uterus," is too narrow, alleging that it wouldn't wholly protect the fertility treatments. 

Barbara Collura, the CEO of Resolve: The National Infertility Association, said that under the bill, states could still pursue a number of avenues to regulate IVF, like banning genetic testing on embryos, limiting the number of embryos created, or prohibiting the cryopreservation or freezing of embryos, which she said "would make delivering care very difficult," while avoiding losing federal funding.

"So it's very clever," said Collura, whose organization helped draft the Democratic IVF legislation, said. "Legislators can say very truthfully, 'hey, we did not outlaw IVF.'"

Duckworth told CBS News that "the problem that we need to address is the fact that all of these states are starting to define a fertilized egg as a human child," citing the Alabama Supreme Court's action, which stemmed from a wrongful death lawsuit where the court determined that the frozen embryos stored for fertility treatments could be considered children.

"So Sen. Cruz's bill doesn't address the issue at hand, which is the move by extremist far-right wing activists and anti-choice people to in state after state after state basically ban access to choice and get to the point where they are claiming that a fertilized egg is a human child," she said. 

Earlier this year, Duckworth tried to secure passage of a measure to protect access to IVF under unanimous consent. But one Republican senator objected, claiming that it would go too far. 

The Access to Family Building Act would create a statutory right for access to assisted reproductive services like IVF. Sen. Cindy Hyde-Smith, a Mississippi Republican, objected to the motion to pass the bill unanimously, calling it a "vast overreach." She warned that among other things, it would legalize "the creation of human-animal Chimeras," although she did not elaborate on the term or explain what prompted her concern.

"I support the ability for mothers and fathers to have total access to IVF and bringing new life into the world," she said. "I also believe human life should be protected — these are not mutually exclusive."

The standoff over the issue comes as at least 23 states have proposed personhood bills that could impact access to IVF treatments, according to the Guttmacher Institute, a research group that studies reproductive health. And Americans widely want to safeguard access to IVF, CBS News polling has found. In a survey released in March, 86% of Americans said they want to keep IVF legal. 

Cruz said of his legislation that on the merits, "it should be 100 to nothing" in the chamber.

"If there are Democrats who oppose it, the only reasoning will be that they want to claim it as a political issue rather than do something meaningful to protect it," he added.

Despite pledges from both sides of the aisle to protect access to fertility treatment, compromise appears unlikely. 

"When they're accusing me of trying to create human-animal hybrids, I don't know how there's bipartisanship there when that is absolutely not true," Duckworth said. 

Collura said that for Republicans who believe a fertilized egg outside the body is a person, "it's gonna be really really hard for you to protect IVF in the way that care is delivered today."

"I feel like this could be so nonpartisan, and I always have felt family building is nonpartisan," she said. "Yet we know that when you call that fertilized egg a person, it's very hard for you to support IVF. And so I don't know if we can get to a point where we have enough Republicans really truly protecting it the way it needs to be protected."

In:
• United States Senate
• Abortion
• IVF

Kaia Hubbard

Kaia Hubbard is a politics reporter for CBS News Digital, based in Washington, D.C.

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