As politicians and organizers across the country battle ongoing abortion restrictions in the wake of Roe v. Wade’s demise, many are gearing up for the next fight in the war on reproductive justice: ensuring continued access to in vitro fertilization and other fertility treatments.
Democratic Sens. Tammy Duckworth (Ill.) and Patty Murray (Wash.) are anticipating that fight with the introduction of new legislation, the Right To Build Families Act of 2022. The bill, introduced in the Senate on Thursday morning, codifies protections for assisted reproductive technologies, including allowing patients to retain rights to their reproductive genetic material and protecting physicians who provide assisted fertility services. The legislation also seeks to allow the Department of Justice to pursue civil action against any state that attempts to restrict access to IVF and other fertility services.
“IVF advocates in this country today are publicly telling us, ‘We need this kind of legislation to be able to protect this,’” Murray told HuffPost by phone on Wednesday. “And here we are after the Dobbs decision where states are enacting laws and we have [anti-abortion] advocates who are now starting to talk, especially behind closed doors, about stopping the right for women and men to have IVF procedures done.”
Many people may not realize that attacks on a person’s right to abortion care also threaten a person’s right to choose to have children. Abortion care and fertility treatments like IVF are intricately linked because of how many Republican lawmakers are redefining when life begins.
IVF is a medical procedure in which an egg is fertilized by sperm outside the body and then implanted into the uterus. Sometimes, physicians will implant multiple fertilized eggs into the uterus to give the person a better chance at a successful pregnancy. Suppose this results in a multiple pregnancy (i.e., twins, triplets, etc.). In that case, people can choose a fetal reduction — lowering the number of fetuses and improving a person’s chance for a healthy pregnancy. More often, physicians will implant one fertilized egg, and if the patient becomes pregnant, they can choose to discard their other fertilized eggs or freeze them for possible future use. And usually, not all fertilized eggs are viable, leading physicians to discard some.
But many lawmakers and Catholic groups oppose IVF because they believe a fertilized egg is a human being or person. Discarding fertilized eggs is murder in the eyes of many anti-choice religious organizations, many of which are pushing to see their beliefs become law.
Lawmakers and anti-abortion advocates in Ohio, Virginia and Texas are already discussing legislation that could potentially ban IVF. Tennessee lawmakers can be heard discussing their plans to roll back access to IVF and contraception in recently leaked audio between the anti-choice politicians and Susan B. Anthony Pro-Life America.
“This is the part of the abortion debate that most Americans were unaware of until Roe v. Wade fell,” Duckworth said.
“This is the part of the abortion debate that most Americans were not aware of until Roe v. Wade fell.”
- Sen. Tammy Duckworth (D-Ill.)
The legislation is personal for Duckworth, who conceived her two daughters using IVF. When Duckworth struggled with fertility, she went to her doctor to seek answers. The physician told her she was simply too old and would never get pregnant. Thankfully, she got a second opinion and discovered she was a prime candidate for IVF. Duckworth later realized that the first doctor didn’t tell her IVF was an option because the doctor worked at a Catholic hospital, which opposed any assisted fertility treatment.
“In my case, I had five fertilized eggs, and we discarded three because they were not viable. That is now potentially manslaughter in some of these states,” she said.
“I also have a fertilized egg that’s frozen,” Duckworth added. “My husband and I haven’t decided what we will do with it, but the head of the Texas Right to Life organization that wrote the bounty law for Texas has come out and specifically said he’s going after IVF next, and he wants control of the embryos.”
Duckworth and Murray worked together last year to introduce the Veteran Families Health Services Act, similar legislation that aimed to repeal Veterans Affairs’ ban on IVF and further protect access to assisted reproductive technologies for veterans. Duckworth told HuffPost she believes the Right To Build Families Act has a better chance at passing the Senate because many Republicans are already on record voting in support of protecting fertility treatments for veterans.
Murray was more reticent about her Republican colleagues’ willingness to support the Right To Build Families Act, pointing to the fact that Democrats could not get any Republicans to co-sponsor the bill.
“I know that there are people out there who don’t want to be the public face of stopping IVF but certainly don’t mind when there’s some negotiation at the end of the day, taking it off the table,” Murray said.
“I’ve seen that with veterans, and I have no doubt that those people exist behind closed doors here today. We should not just assume that they’re not going to be active about this.”
CORRECTION: This article has been updated to reflect that the Veteran Families Health Services Act was introduced in 2021, but did not pass into law.