WASHINGTON — After a failed vote last week that would have ensured nationwide access to contraception, Democrats on Thursday are expected to force a vote to enshrine protections for in vitro fertilization — a fertility procedure that has helped millions of families have children — and expand access to the treatment for service members and veterans.
The Right to IVF Act is a “comprehensive” package aimed at protecting IVF, according to the Democratic trio behind the bill: Sens. Cory Booker, D-N.J.; Patty Murray, D-Wash.; and Tammy Duckworth, D-Ill. It includes four bills that aim to preserve access to IVF by prohibiting states from imposing restrictions on the treatment and making it more affordable.
But a majority of Republicans are expected to block the legislation on a procedural vote, deeming the bill unnecessary and politically motivated, despite saying they back access to IVF. Instead, Sens. Katie Britt, R-Ala., and Ted Cruz, R-Texas, attempted to pass their own, much narrower IVF bill Wednesday evening but Murray objected, blocking a vote after Democrats called the legislation “dangerous” and “a step backwards.”
The GOP bill, the IVF Protection Act, would withhold key Medicaid funding to any states that ban access to IVF, but it does not address the potential legal consequences of discarding nonviable embryos. That’s the key issue, Democrats argue, and a major question for providers and doctors, particularly after an Alabama Supreme Court ruling earlier this year called into question whether frozen embryos created during fertility treatments should be considered children.
Every Republican senator signed onto a statement led by Britt after Democrats blocked the GOP bill, accusing Democrats of engaging in “a partisan campaign of false fear mongering intended to mislead and confuse the American people.”
“In vitro fertilization is legal and available to every state across our nation,” they said in the statement, which was first provided to NBC News. “We strongly support continued nationwide access to IVF, which has allowed millions of aspiring parents to start and grow their families.”
Duckworth, who used IVF to have her two children, told NBC News in an exclusive interview Tuesday that conservatives who “believe that a fertilized egg is a human being” can endanger access to the procedure.
“Like in my case, we created five fertilized eggs; three were viable. If you were to implant one of those nonviable eggs, it would have caused a miscarriage. We discarded those three,” she said, noting that could be considered manslaughter or murder under laws and decisions like the Alabama Supreme Court’s.
The Alabama Legislature quickly acted in response to the Supreme Court’s decision, restarting IVF treatments throughout the state in March and shielding providers with criminal and civil immunity. But the legislation that Republican Alabama Gov. Kay Ivey signed did not include a stipulation as to when life begins.
Aside from Alabama’s legislating on the issue, the Southern Baptist Convention, the largest Protestant body in the U.S., voted Wednesday to oppose IVF and encourage the government to restrict the practice.
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"You can’t support fetal personhood or a fertilized egg as a person and also support IVF," Duckworth said. "And that is the critical part that our Republican colleagues are trying to hide from the American people."
The Democrats’ legislation would protect providers from legal liability for discarded embryos and require more health insurers to cover fertility care. Also included is the Veteran Families Health Services Act, which would expand access to IVF and other fertility treatments for veterans and allow service members to freeze their eggs before deployment. The Pentagon and Department of Veterans Affairs have covered fertility treatments for years, but strict eligibility rules have limited coverage for service members and veterans. The bill would increase the number of eligible individuals.
For Duckworth, enshrining the protection into law is personal and expanding access to service members and veterans is dire. After her deployment to Iraq, where she served as a Black Hawk helicopter pilot in 2004, the injured Army veteran tried unsuccessfully for a decade to become pregnant before she found success with IVF.
Infertility in the military is understudied, but according to a 2018 survey, 37% of active-duty women said they struggled with infertility, a rate that is three times higher than the national average.
“So many families go through this pain of trying to conceive and not being able to conceive and trying to figure out what was happening,” she shared. “With IVF, I was finally able to hold my baby and have my children, and they are the joys of my life.”
Duckworth went through her IVF journey before the Supreme Court overturned Roe v. Wade in 2022, ending the 50-year constitutional right to an abortion. Since then, conservative-led states have tried to undercut other reproductive health protections, including for fertility treatments, contraceptives and emergency contraceptives used to prevent pregnancies.
It’s a significant concern for Julie Eshelman, a military spouse who had her first and only child using IVF. Military families are often moved to different states at the military’s directive with limited input from the families themselves.
At one point earlier this year, Eshelman’s family was asked to move to Alabama around the same time the state’s Supreme Court restricted IVF. It didn’t end up happening, but because they move so often — every 11 to 24 months — Eshelman worries that her reproductive health care could be affected in a red state with restrictions on abortion or IVF.
“When we moved from Washington to Arizona and from Arizona to Illinois, we didn’t have to worry about whether we’d be able to access IVF or access care if I suffered another miscarriage, because I have experienced four of those,” Eshelman told NBC News in an interview ahead of a news conference with the Democratic senators and IVF advocates Wednesday.
While both sides have argued that they support protecting access to IVF, lawmakers have been at odds over the path forward to safeguarding the procedure, and bipartisan compromise looks unlikely in the closely divided Senate.
Without federal action, Eshelman said her family will have to consider whether her husband, who has served for 14 years, can continue serving if he is deployed to a state where access to IVF was restricted.
“My husband is so dedicated to his service,” Eshleman said, “but I think if we were put in a situation where we did decide we wanted to continue building our family and we were sent to a place where we might not be able to, we might have to have that conversation.”
