Fertility Experts Say Ted Cruz and Katie Britt’s Bill to Protect IVF Isn’t Helpful

In February, the Alabama Supreme Court determined that embryos are “extrauterine children” and their destruction—even by fertility clinics—could warrant wrongful death lawsuits. In the immediate aftermath, fertility clinics across the state paused IVF services, until the state quickly passed legislation to protect IVF. Still, the impact of court rulings and laws—including abortion bans—that recognize fetuses and embryos as people with legal rights has remained a point of simmering tension across the country, especially among anti-abortion lawmakers desperate to prove their support for abortion bans isn’t extreme.

This week, Republican senators Ted Cruz (TX) and Katie Britt (AL) introduced a bill to ostensibly protect IVF by threatening to strip states that ban the fertility technology of their Medicaid funding. The duo’s IVF Protection Act comes as the GOP continues to navigate a growing internal divide on the issue, as some Republican lawmakers have affirmed the Alabama ruling while others have tried to disassociate themselves from it. In an op-ed for the Wall Street Journal, Britt and Cruz said their bill is “pro-family” and that it “affirms both life and liberty.”

Barbara Collura, president of RESOLVE: The National Infertility Association, told Jezebel on Tuesday that she was “surprised” to learn the two anti-abortion senators had filed such a bill. Despite the bill’s stated purpose, its language and varying holes still leave IVF vulnerable, she said. Importantly, the Alabama ruling didn’t state point-blank that it banned IVF; instead, it recognized a routine part of the IVF process (the destruction of embryos) as potentially amounting to wrongful death—which ensured fertility clinics would be unable to offer the service without being vulnerable to costly lawsuits. Collura points out that states are unlikely to impose literal bans on IVF but rather, police and restrict certain aspects of the IVF process. This process involves fertilizing eggs outside of the uterus and trying—often unsuccessfully—to implant them, then destroying those that remain unused.

“The bill says that states can impose legislation on any health and safety concerns around the specifics of the IVF process, so it would be very easy for states to say ‘IVF is still legal but has to be done in a particular way,’ in a particular way that clinics can’t do,” Collura said, “but still adhere to the bill.” In fact, often enough, “people will say ‘we support IVF, it’s legal, but,’ and the part after the ‘but’ will make it very hard for our community.”

Instead of a bill that gives states free rein to effectively ban IVF so long as they don’t explicitly say they’re banning IVF, Collura says Cruz and Britt should support Sen. Tammy Duckworth’s (D-IL) bill, which codifies a federal right to IVF and would prohibit states from restricting access to the fertility technology. Duckworth’s bill also explicitly protects health care providers’ right to offer these treatments without the threat of prosecution. It failed in February because one Republican senator blocked the unanimous consent process for it to pass, calling the legislation a “vast overreach” that’s “full of poison pills that go way too far, far beyond ensuring legal access to IVF.”

But Cruz and Britt’s bill, specifically its language stripping states of Medicaid funding should they ban IVF, “doesn’t provide any real protection,” Collura said. And as the American Society for Reproductive Medicine has pointed out, this feature of the bill “will only punish vulnerable patients and do little to protect fertility care.”

Ted Cruz and Katie Britt just released a new bill they claim is to “protect IVF.”

Here’s the catches:
1) it does *nothing* to protect IVF from courts enforcing “personhood” laws (see Alabama ruling)
2) it explicitly allows states to push “health and safety standards” for IVF pic.twitter.com/tvHI4xNMY8

— Sawyer Hackett (@SawyerHackett) May 20, 2024

Abortion and reproductive rights groups have also criticized the IVF Protection Act given Britt and Cruz’s sharply anti-abortion records: “This is a blatant and hypocritical attempt for two staunchly anti-abortion Republicans to try to save face with voters,” Mini Timmaraju, the president of Reproductive Freedom for All (formerly NARAL), said in a statement shared with Jezebel. “Senate Republicans not only support policies that threaten IVF and birth control, they also enabled Trump to appoint conservatives to the Supreme Court who overturned Roe v. Wade and emboldened extremist judges to attack fertility treatments.”

Among the states that have banned abortion since 2022, several accord some legal recognition to the personhood embryos and fetuses. “That kind of language always puts the practice of IVF at great risk, where, if a fertilized egg is a person, many things routinely done in an IVF lab raise immediate legal concern,” Collura said. “That’s exactly what we saw in Alabama.”

Cruz and Britt specifically have made anti-abortion stances the centerpiece of their politics. Earlier this month, Britt marked Mother’s Day with a bill that would create a federal digital registry of anti-abortion crisis pregnancy centers, which would collect sensitive information about potential abortion seekers. Cruz has introduced a 20-week national abortion ban.

Meanwhile, as Republicans at every level of government try to distance themselves from attacks on IVF, the anti-abortion groups they frequently collude with haven’t been shy about condemning IVF altogether.

In March, top anti-abortion activists working with Live Action, Susan B. Anthony Pro-Life America, Students for Life, March for Life, and Eagle Forum urged anti-abortion Alabama Gov. Kay Ivey (R) not to sign a bill to protect IVF, arguing that “IVF is not a morally neutral issue,” and that a bill to codify protections for IVF “will ultimately harm these families and jeopardize the lives of precious children,” referring, of course, to embryos. 

Ivey ultimately signed the bill, but other anti-abortion Republicans have very publicly rejected IVF protections. Sen. Cindy Hyde-Smith (R-MS) blocked Duckworth’s aforementioned IVF bill. That same month, Tennessee Republicans blocked a bill to codify IVF and birth control protections from even coming out of committee because—tellingly—they argued it would weaken and limit the state’s total abortion ban. 

Since the Alabama Supreme Court ruling, Collura says that for the first time in years, “people are talking about IVF” and the challenges that people struggling with fertility face to get care and build their families. “That’s great, but what are you doing to actually protect the availability of IVF?” Cruz and Britt’s bill is a perfect example of lip service that fails to actually help anyone.