Hiltzik: The fakery of the GOP’s ‘pro-IVF’ measure

Ever since the Supreme Court upended reproductive health rights in its 2022 Dobbs decision, antiabortion activists have been trying to make the case that the decision won’t have the dire effect on women and their families that its critics foresaw.

They’ve been wrong, as has been demonstrated by the rising tide of incidents in which pregnant women have been exposed to severe injury or near-death experiences for want of a therapeutic abortion.

But the case also opened the door to legal predicaments throughout the healthcare universe — most recently via a ruling on two cases by the Alabama Supreme Court in February, effectively outlawing in vitro fertilization in that state.

Opinion polls show that giving people a route to parenthood via IVF is immensely popular, so even conservative lawmakers have scurried to enact laws to protect the method.

The most recent initiative comes from Republican Sens. Ted Cruz of Texas and Katie Britt of Alabama, who introduced their “IVF Protection Act” on May 20 and have been touting it in the Wall Street Journal, Bloomberg and elsewhere as a measure that “protects both life and IVF.”

Their bill does nothing of the kind. It’s a scam. More on that in a moment.

First, a brief primer on the IVF method. IVF isn’t abortion. Quite the contrary, it’s a means of creating, not terminating, a pregnancy.

But with the Supreme Court signaling via Dobbs and other recent rulings that it won’t interfere with state-level restrictions on reproductive healthcare, legislatures and courts in red states have turned their gunsights on healthcare rights of all varieties. The Alabama Supreme Court reached all the way back to an 1872 law to drive IVF out of the state.

IVF aims to help couples achieve pregnancy when medical issues prevent them from conceiving or they have concerns about heritable genetic mutations that might affect the health of their prospective offspring. Millions of Americans have employed IVF or know couples who have done so. There’s no question about its safety or its efficacy. Celebrities including the Obamas, Paris Hilton and Brooke Shields, and Republican politicians such as Rep. Michelle Steel (R-Seal Beach) have used IVF to conceive.

The procedure begins with the harvesting of unfertilized eggs from a woman’s ovaries. Subsequently, they’re fertilized by sperm from the woman’s partner. A few days later, an embryo — in some cases more than one — is placed in the woman’s uterus. Within another day or two the embryo implants itself in the uterine lining and is allowed to continue gestation normally.

To understand the act of misdirection that Cruz and Britt are pulling off, let’s examine that Alabama Supreme Court decision. The decision says almost nothing about the procedure that most laypersons think is the alpha and omega of IVF — the implantation of manually fertilized embryos into the uterus. To the extent that this process needs regulation, the justices held, that should be left up to the legislature.

But of course there’s more to IVF than that. IVF clinics typically produce multiple embryos but only implant one or two at a time. The idea is to give the parents further options if an implantation fails. In roughly half of all cases, the embryos are subjected to pre-implantation genetic testing to identify potentially troublesome mutations.

Many couples choose IVF because they’re concerned that one or both prospective parents may be carriers of a genetic mutation that could cause a serious medical condition, and they want to know ahead of time.

“If this genetic mutation is discovered in an embryo, the embryo is usually discarded,” says Joanne Rosen, an expert in public health at Johns Hopkins. She asks whether the Alabama ruling means that “genetic testing should no longer take place because you can’t discard the embryos?”

Also, the thawing and implanting of embryos itself may damage or destroy an embryo. Typically, those embryos are discarded.

The Alabama decision was concerned almost entirely with that stage of the process — specifically with the legal status of the unused or discarded embryos. The court ruled that they fell within the protection of the state’s 1872 Wrongful Death of a Minor Act — largely because that antique law didn’t explicitly provide “an exception … for extrauterine children,” as Justice Jay Mitchell wrote for the court majority.

Indeed, the legal quandary that prompted Alabama’s IVF clinics to shut down after the ruling wasn’t that their right to implant embryos was now in question — it was their potential liability for the treatment of the unused embryos.

This isn’t a trivial issue. By some estimates, more than 1 million embryos are currently in cryogenic storage across the U.S. The Alabama ruling, if it percolates nationwide, “raises a huge question about what the obligations are for these frozen embryos,” Rosen said on the Johns Hopkins website. “Does this mean that they cannot be destroyed and have to be preserved into perpetuity?”

That’s what makes the Cruz/Britt measure so slippery. It purports to guarantee Americans access to in vitro fertilization by forbidding states to outlaw it, but defines IVF simply as “the practice whereby eggs are collected from ovaries and manually fertilized by sperm, for later placement inside of a uterus.”

Nothing there about how to treat the stored embryos or the legal consequences if any are injured in the process of fertilization or placement. Their proposal, moreover, says that nothing can block states from “implementing health and safety standards regarding the practice of in vitro fertilization.”

Abortion rights advocates will recognize that provision as a poisoned chalice, because even before the Supreme Court overturned Roe vs. Wade with its Dobbs ruling, numerous antiabortion states were imposing onerous regulations on abortion clinics in the name of “health and safety” — everything from dictating corridor widths to requiring that providers have admitting privileges at local hospitals.

These pernicious regulations are known as “TRAP laws,” for “targeted restrictions on abortion providers.” They’re “often pushed by anti-abortion politicians under the guise of ‘women’s health,’” in the words of Planned Parenthood, but their real purpose “is to shut down abortion providers and make it more difficult for people to access abortion.” In their bill, Cruz and Britt explicitly encourage more of this in relation to IVF.

One more point: The bill’s guarantee of rights even to its narrowly defined IVF is nothing like absolute. It’s tied to a state’s participation in Medicaid — states would be required to keep IVF legal as a condition of their receiving Medicaid payments.

How big a cudgel is this? In some states, almost none at all. We know this because 10 GOP-led states, mostly in the deep South, still have not expanded Medicaid under the Affordable Care Act, even though the federal government pays 90% of the cost of covering the eligible residents.

In those states, an estimated 1.5 million residents fall into the “coverage gap” — their incomes are too low to be eligible for ACA subsidies, but even though they live below the federal poverty line, their incomes are too high to be eligible for Medicaid in their states.

Those states include the home states of Britt and Cruz: Alabama (174,000 in the coverage gap) and Texas (1.2 million). It’s not hard to imagine their legislators voting to turn away Medicaid services for their poorest residents in order to preserve their status as bulwarks against reproductive health rights for women and couples.

The reaction of congressional Republicans to a proposal that would actually have protected IVF providers and patients from legal peril gives the game away. That measure, the “Access to Family Building Act,” was introduced by Sen. Tammy Duckworth (D-Ill.), who had her two children with the help of IVF.

Duckworth’s bill would have given Americans a legal right to access IVF and empowered patients and the Department of Justice to sue any state or state official who infringed that right. More to the point, it explicitly granted IVF patients “all rights regarding the use or disposition of reproductive genetic materials,” which would preempt any state from undertaking the same interference with the process endorsed by the Alabama court.

Republicans blocked Duckworth’s bill in the Senate. Asked about that on Bloomberg TV, Cruz said that her bill “seeks to back-door in broader abortion legislation.” This is just arrant claptrap. Duckworth’s measure has nothing to do with abortion; it deals explicitly and exclusively with “assisted reproductive technology” as it has been defined in federal law since 1992. Cruz’s beef with it plainly is that it is devoid of the anti-IVF loopholes that he and Britt wrote into their bill.

The cases before the Alabama Supreme Court were brought by two couples whose embryos were accidentally destroyed by an intruder at the Mobile clinic where they were frozen and stored. (Both couples had had healthy babies conceived via IVF.) The court made clear in its 8-1 decision that its rationale had nothing to do with science, and much more to do with religion.

“The theologically based view of the sanctity of life adopted by the People of Alabama,” wrote Chief Justice Tom Parker in a concurring opinion, is that “human life cannot be wrongfully destroyed without incurring the wrath of a holy God.”

The justices adopted the doctrine of legal “personhood” beloved of the antiabortion camp. “All members of this Court,” Mitchell wrote, “agree that an unborn child is a genetically unique human being whose life begins at fertilization and ends at death.”

As for how the 1872 law applies, the court employed the “originalist” doctrine largely crafted by the late Supreme Court Justice Antonin Scalia, who maintained that a law must be interpreted the way its original drafters understood it to mean. Scalia is cited 10 times in the Alabama decision, but in this case the justices squeezed “originalism” until it screamed for mercy.

“Unborn children are ‘children’ under the Act,” Mitchell wrote, “without exception based on developmental stage, physical location, or any other ancillary characteristic.” Yet the idea that 19th century lawmakers contemplated that unborn children could survive outside the womb as were the frozen embryos, and granted them legal rights is plainly absurd. The birth of Louise Brown, the very first IVF baby, was in 1978.

The sole dissenter on the Alabama court, Greg Cook, warned that “the main opinion’s holding almost certainly ends the creation of frozen embryos through in vitro fertilization in Alabama.” His concerns were dismissed by his colleagues in the majority — his “prediction does not seem to be well-founded,” sniffed Parker. Yet the IVF centers serving the bulk of patients in the state shut down in the immediate wake of the decision.

After Gov. Kay Ivey signed a protective law in March purporting to give IVF providers legal immunity, two resumed operations, but not the Mobile clinic connected with the case. And many experts are unsure whether the new law is as effective as its sponsors claim.

That’s the legacy of the U.S. Supreme Court’s Dobbs decision. Antiabortion agitators have signaled that they’ll use any means they can persuade religiously inclined judges to accept, even outlawing contraceptives. Granting “personhood” to cryogenically frozen embryos that can’t be seen without a microscope is just one step on the path to the legal chaos they believe works in their favor.

In their Wall Street Journal op-ed, Cruz and Britt shed crocodile tears over the fact that, following the Alabama decision, “confusion and misinformation has spread, inflamed by partisan commentary.” This was a majestically dishonest take. Their own bill demonstrates that “partisan commentary” had nothing to do with the confusion. The Alabama decision was its cause. Their own bill would only make things worse, and you can be sure that they know it.