At a Republican retreat in West Virginia last week, Speaker of the House Mike Johnson said his party would "protect and preserve"
The backpedaling came in response to national furor over an Alabama case that prompted
"It's not my belief that Congress needs to play a role here," Johnson, who opposes abortion, said at the retreat. "I think it is being handled by the states."
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Indeed, there's a movement happening across U.S. states to bestow the idea of
In Kentucky the debate has been around allowing people to collect child support from the point of conception. In Florida, there has been an attempt to add the words "unborn child" to the wrongful death statute. In Texas, it's a lawsuit from a would-be father against the women who helped his ex-wife get abortion pills.
These might not appear connected but they're all part of a broader push for "personhood" in the U.S., which is making its way into both state legislatures and courts. If such efforts continue, the fertility industry remains under threat.
"Is it possible to have effective IVF and personhood exist?" said Mary Ziegler, a law professor at University of California at Davis who specializes in reproductive rights. "Probably not."
Alabama showed just how the enforcement of personhood laws could jeopardize IVF. After the state Supreme Court ruled frozen embryos are people in a wrongful death case involving an IVF clinic, fertility clinics around the state halted treatments. Seeing the backlash, the state legislature rushed to pass a separate law to protect IVF providers. But the state didn't change the personhood language in its constitution, leaving clinics still vulnerable to future legal action.
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The clinic at the heart of the Alabama lawsuit hasn't resumed treatments due to the ambiguity. "The law falls short of addressing the fertilized eggs currently stored across the state and leaves challenges for physicians and fertility clinics," said a spokesperson for the clinic, the Center for Reproductive Medicine.
After the uproar over Alabama's ruling, Arizona's attorney general tried to reassure the public but didn't go so far as to say that the fertility industry will continue to be safe. Arizona has its own personhood law that's currently blocked by the courts.
"IVF is still legal in Arizona and currently unaffected by rulings in other parts of the country. But, like many topics related to reproductive healthcare, this remains a fluid area of the law that might change in the future," attorney general Kris Mayes' office said after the Alabama ruling.
The personhood movement is following the playbook conservatives used to overturn Roe v. Wade, a landmark decision which provided nearly five decades of protections for abortion. The anti-abortion movement used a slow-but-steady strategy to chip away at existing protections by introducing dozens of state laws and creative legal challenges. While the question of personhood has been around since the 1970s, now that Roe has been overturned, it's become the anti-abortion movement's new target.
Josh Craddock, an anti-abortion strategist and affiliated scholar with the James Wilson Institute, laid out a roadmap to a national personhood ban in a National Review article he wrote with other anti-abortion leaders last summer. He said last week that one way to enact personhood laws and still protect IVF would involve requiring just one egg be fertilized at a time.
Common practice is to create several embryos to give people higher odds of success or multiple children. Normally, IVF doctors screen embryos for abnormalities. That's one reason clinics end up disposing of some frozen ones as a routine part of IVF treatment. While Craddock believes genetic screening is unethical, he says that if embryos are screened, the ones with abnormalities should be implanted regardless.
Doing it that way could make IVF treatments riskier or less effective, particularly if a person ends up using an embryo that isn't likely to survive. As it stands, IVF treatments currently run into the tens of thousands of dollars so by going one embryo at a time, it could also cost more money and take more time.
Still, some states are forging ahead with personhood. "Where we are now, we're beginning state by state. That's a good start, but I hope one day in the U.S. we can all agree," said Republican West Virginia State Senator Patricia Rucker, who wants to see a personhood law at the federal level. "This session is pretty much wrapped in West Virginia, but I'm certain we'll be having discussions about this next year."
When asked if the personhood movement could ultimately succeed with a national abortion ban, Rucker said "definitely."
Voters support IVF
Republicans are trying to find a way to appease evangelicals and anti-abortion groups without alienating swing state voters or suburban women who Trump will need to win over in November to take back the White House.
It's a tricky line to walk politically. IVF is largely embraced, even by conservative voters. Former Trump campaign manager and Republican pollster Kellyanne Conway found in polling she did for Republican candidates that 78% of anti-abortion voters and 83% of evangelical voters support access to fertility procedures and services.
Anti-abortion groups like Concerned Women for America, a long-standing Christian anti-abortion group, have been trying to lobby lawmakers on Capitol Hill as well as Johnson, the House speaker. They've argued that there needs to be greater scrutiny of what happens with fertilized embryos as part of IVF — a move some reproductive rights advocates view as yet another avenue to further restrict abortion access.
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"The fertility industry is just like any other industry. They do not want regulation of any sort. Our position is: This is not right. There needs to be ethical standards for fertility companies," said Penny Nance, the chief executive officer and president of Concerned Women for America.
The Republican nominee for president, Donald Trump, has been quick to say he supports IVF. He's cognizant of not appearing extreme on abortion ahead of the November election. In the days leading up to the South Carolina GOP primary, he urged Alabama lawmakers to make their support for IVF clear too. But Trump's ever-expanding grip on the party has not uniformly spread to reproductive rights.
Even with personhood's current momentum, a federal precedent establishing rights for embryos and fetuses is still likely years away — if it ever happens. Absent a new personhood law from Congress — a move that would almost certainly be challenged by a lawsuit — a federal court order is the most likely avenue for the establishment of personhood.
The latest configuration of the U.S. Supreme Court has so far avoided the issue, despite having two chances to weigh in over the past few years. But if states continue to pursue personhood laws that attract lawsuits, the court may be forced to confront the issue.
Medical reality
Those in the reproductive health industry are on the offensive. Sean Tipton, chief advocacy and policy officer for the American Society for Reproductive Medicine said the organization is lobbying state lawmakers to prevent personhood laws that severely restrict IVF. A lot of basic education about reproductive health has been necessary — like the fact that a large proportion of fertilized embryos will not result in a successful pregnancy even with IVF. "We need to help policymakers understand medical reality," he said.
President Joe Biden has stepped up his rhetoric on reproductive health issues. In his State of the Union address this month, he urged Congress to pass a law to protect IVF nationally as a result of what happened in Alabama.
In Florida, Democrats are pushing for a change to the constitution that would effectively prevent a personhood law. Florida's "Amendment 4" would establish a constitutional right to abortion before fetal viability or when necessary to protect a person's health, and could be voted on this November. The potential ballot measure itself doesn't define viability, but it's largely considered around 24 weeks of pregnancy.
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Because of a legal challenge to the ballot question, the state's Supreme Court now needs to approve the wording. The shadow of personhood looms large. During oral arguments in the case, one state Supreme Court justice raised questions about whether the state's constitution guarantees rights to fetuses.
The state's Senate Democratic Leader Lauren Book worries that signals that anti-abortion leaders are "trying to backdoor personhood to come before our Florida Supreme Court." Book and other lawmakers are now waiting for the state Supreme Court to approve the language for the ballot vote, which is expected in the next few weeks.
There's still a chance that the court could prevent the question from going on the ballot.
