Feb 28, 2024 - Health

Biden may have limited options to protect IVF treatment

Photo illustration of a collage of Alabama, medical diagrams of human eggs turning into embryos, and President Biden.

Photo illustration: Shoshana Gordon/Axios. Photo: Chip Somodevilla/Getty Images

Fertility providers are talking with the Biden administration about possible steps it can take to ensure access to in vitro fertilization, while legal experts say the administration likely has some limited powers.

Why it matters: President Biden has seized on the Alabama Supreme Court decision that's resulted in disruptions to IVF treatments, tying it into his campaign's focus on protecting reproductive rights.

  • But his administration hasn't yet said if or how it will use executive power to safeguard the procedure in Alabama and other states with strict laws governing when life begins.

State of play: The American Society for Reproductive Medicine said it's been in discussions with officials in the White House and the health and justice departments about possible measures in the aftermath of Alabama's ruling that frozen embryos are children and those destroying them can be held liable for wrongful death.

  • "It's clear the Biden administration is committed to helping fix this," Sean Tipton, chief advocacy and policy officer, told Axios in an email.
  • The Biden administration, which sent its top health official to Alabama on Tuesday to highlight the ruling's impact, will continue to "speak out about the devastating impacts of the Alabama ruling," said White House spokesperson Kelly Scully.
  • She did not answer Axios' question about which executive actions the administration is considering.

Democratic lawmakers, meanwhile, are pushing for legislation protecting IVF protection nationwide, but it's unclear what, if any, measures congressional Republicans would support — even as they try to distance themselves from the Alabama ruling.

Zoom in: Tipton did not say what measures the reproductive medicine group is discussing with the administration. Legal experts, meanwhile, suggested a couple of strategies the Justice Department could pursue.

  • DOJ could issue guidance emphasizing that IVF is still legal and that the recent decision only affects patients in Alabama, said Michele Goodwin, a constitutional law and global health policy professor at Georgetown University.
  • "There are many Americans around the country wondering if this means that IVF is over and done," she said.

DOJ could also look to protect interstate transfer of frozen embryos, said Amy Dru Stanley, a University of Chicago history and law professor.

  • The Department of Health and Human Services could consider issuing guidance to health care providers to help shore up access to IVF services.
  • After Roe v. Wade was overturned, HHS advised doctors they were still required under federal law to provide emergency abortion care in states with strict bans, though that guidance is being challenged at the Supreme Court.

It could take time for the administration to sort out uncharted legal questions around IVF access, Stanley said.

  • But patients and reproductive health experts are worried that other conservative states could limit IVF treatments following the Alabama ruling.
  • So far, Republican officials are treading carefully amid strong public support for IVF. Alabama officials say they're working on legislation to undo the ruling's impact on IVF, and Florida lawmakers postponed voting on a bill that would expand wrongful death liability for fetuses.

The bottom line: The Biden administration's best tool for protecting IVF access this year may be taking the political fight to Republicans.

  • More administrative action "would be around the edges," said Jill Steinberg, a health care lawyer and partner at ArentFox Schiff.

Go deeper: Two-thirds signal opposition to Alabama IVF ruling

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