Nov 29, 2022 - Health

Republicans' thorny path ahead on fertility policy

Illustration of a syringe under glass.

Illustration: Aïda Amer/Axios

Former Vice President Mike Pence's recent support for fertility treatments like IVF as well as a national abortion ban surfaced what could become a dilemma for 2024 Republican hopefuls staking out reproductive health platforms.

The big picture: Republicans have largely insisted that fertility treatments aren't at risk from the proliferation of new state abortion restrictions. But anti-abortion groups remain deeply concerned with the use of embryos in IVF and back tighter regulations on providers.

  • The divisions may create a thorny path for 2024 hopefuls intent on bolstering their anti-abortion bona fides while still hoping to differentiate themselves from the rest of the field.

Driving the news: "I fully support fertility treatments and I think they deserve the protection of the law," Pence recently said on CBS' Face the Nation, citing he and his wife Karen's struggles with infertility. She underwent IVF several times, he said.

  • At the same time, the likely 2024 presidential contender was unambiguous on abortion, saying he would support Sen. Lindsey Graham's 15-week federal ban if he was in Congress "as a beginning" — and adding he'll keep working to "restore the sanctity of life to the center of American law in all 50 states."

State of play: Legal experts say that the language of red-state "trigger laws" banning abortion may, in some cases, be interpreted to apply to IVF as well, since embryos are fertilized before they're stored.

  • There hasn't been a large-scale push to interpret the laws that way — in fact, some Republican attorneys general have issued guidance saying that they're not applicable to embryos made outside of a woman's body.
  • But the pro-life movement, like the GOP, is still finding its footing in the post-Roe world, and IVF and other assisted reproductive technologies are still opposed by some groups, according to their websites.
  • In audio obtained by ProPublica of a meeting between the anti-abortion group Susan B. Anthony Pro-Life America and Tennessee lawmakers, the group suggests that lawmakers could discuss regulating IVF "in a more ethical way" after they focus on abortion bans.
  • That could put positions like Pence's into conflict with some of Republicans' most reliable allies, at least if they don't include specific guardrails designed to protect embryos.

Between the lines: Some Republican politicians have quietly expressed openness to more stringent IVF regulations.

  • In an audio clip provided to the Atlanta Journal-Constitution, Georgia Gov. Brian Kemp (R) replied "yeah" when asked if he liked the idea of a bill to prohibit the disposal of surplus IVF embryos deemed unsuitable for implantation.
  • Republican Don Buldoc, who lost the New Hampshire Senate race this month, said during an October campaign event that the disposal of embryos for IVF was "a disgusting practice," and signaled that he'd be open to banning it, per a recording obtained by Vanity Fair. "I don't like that practice at all ... and we've got to do something about it," Bolduc said.

Be smart: During IVF, a health provider collects and fertilizes a patient's egg outside the body, and then those considered the most suitable are implanted in the patient's uterus. Those that are not implanted may be frozen and stored (which generally requires a recurring storage fee), donated or discarded.

What we're watching: Infertility and health experts worry about potential legislation that bestows legal rights on embryos without banning IVF itself, which they say can still can put the procedure at the mercy of regulators or courts.

  • "If you're regulating embryos, you're not able to do IVF to the standard of care that is available today," said Barb Collura, president and CEO of Resolve: The National Infertility Association.
  • "You can't do IVF if you can't freeze an embryo, if you must transfer every embryo that's created. That's just not going to work," Collura added.
  • If embryos cannot be discarded, it would likely lead to increased costs and, as a result, decreased use of IVF, said Loren Colson, a family physician in Idaho who is currently going through IVF with his partner.

Zoom in: The United States Conference of Catholic Bishops opposes IVF, saying that "reproductive technologies like IVF put the lives of women and children at risk."

  • “A moral dilemma is being ignored as an under-regulated industry plays with the building blocks of life," said Kristan Hawkins, president of Students for Life of America. "Our nation is avoiding hard conversations about how creating disposable children harms the children we ‘allow’ to live by teaching them they are expendable.”
  • Several state Right to Life branches — including those in Texas, Illinois and Louisiana — oppose or express deep concerns with the procedure.

The other side: "Not a single state legislature or Congress is debating making fertility treatments illegal. We are focused on stopping the intentional killing of unborn human life," Susan B. Anthony Pro-Life America said in a statement provided to Axios.

What they're saying: Fertility treatments are "just not something that I see a whole lot of conversation happening on, at least in the context of legislative proposals," said Melanie Israel, a policy analyst at The Heritage Foundation.

  • "The Dobbs decision was an earthquake politically, legally, culturally, and I think people are still navigating that," she added.

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