Republicans up and down November’s ballot were always going to be on the back foot when it comes to access to abortion and other reproductive health issues.
Now they have to answer questions about in vitro fertilization and access to contraception as well.
A ruling this month by Alabama’s Supreme Court made clear just how treacherous those topics will be for Republicans.
Chief Justice Tom Parker declared that embryos frozen during the IVF process have the same legal protections as living children. A cluster of frozen cells accidentally destroyed in a lab, by Parker’s reasoning, equals the wrongful death of a person out here in the world.
His ruling sounded more like a brimstone sermon than clear-eyed jurisprudence, with 40 mentions of God and eight references to the Bible’s Book of Genesis.
It sparked outrage across the country.
And many Republicans scrambled to make public displays of support for IVF and the would-be parents who use it and maybe now will think about it as they cast their ballots in November.
Will Republicans seek a national ban next?
But some conservatives, including some Republicans seeking or holding office or federal judicial posts, have been emboldened by their June 2022 victory, when the U.S. Supreme Court overturned constitutional protections for abortion. That decision returned the question of whether to allow or restrict abortion to the states.
These conservatives want more. Now they want a federal ban on abortion and regulations making it more difficult to obtain contraception.
Democrats in the U.S. House in 2022 passed the Right To Contraception Act only to see Republicans in the Senate stall that effort.
That bill was introduced in the House a month after the Supreme Court overturned Roe v. Wade, with Justice Clarence Thomas writing in that decision that the court should review other precedents, including a 1965 ruling that gave married people the right to use contraception.
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Add to that the Alabama ruling, which echoes efforts in Congress for decades that would complicate the already arduous process of IVF by making health care providers treat every embryo as a child.
That’s tactical. Parker’s ruling didn’t ban IVF, but plenty of doctors in Alabama suspended the practice out of fear of being held responsible for its repercussions.
Sound familiar?
Before Roe was overturned, Republicans in state legislatures heaped regulation upon regulation on abortion providers, sometimes governing them right out of the medical practice.
Voters have been clear on abortion rights. Will IVF make things harder for Republicans?
Abortion has been a losing issue for Republicans since Roe fell. Infringing on IVF and contraception will be more of the same.
A Gallup poll last year found that 66% of Republicans said abortion should be legal in certain circumstances. Another Gallup survey last year found that 88% of Americans say birth control is morally acceptable.
Opposing abortion is one thing. But tripping up people when they seek contraception, which can help reduce abortion? Or hindering people who are trying to have children with IVF?
Jenny Lawson, executive director of Planned Parenthood Votes, told me that has been the conservative “playbook” for decades.
Lawson said creating “chaos” in the use of IVF was the point in Alabama. And overturning Roe was just the opening gambit in conservative plans to interfere in how family decisions are made. Her organization is tracking 38 pieces of “personhood” legislation in 13 states this year that grant legal rights to fetuses. And now embryos are in the mix.
“They are using every tool at their disposal,” Lawson said “And the Alabama Supreme Court decision is just the latest example of how they are continuing to attack reproductive freedom and restrict access to health care. And it’s not going to stop at abortion. It’s going to include IVF. It’s going to include contraception.”
What about my embryo?An embryo that could be my second child is in Alabama. A court just put that in jeopardy.
Lawson cited Nikki Haley’s stumble on the question of IVF. The long-shot Republican primary contender at first applauded the Alabama ruling but then quickly walked that back.
“They’re coming after everything,” Lawson said. “And they know it is unpopular.”
Then there is the ‘Life At Conception Act’
Republicans in the U.S. House and Senate have introduced every two years for decades two versions of the Life At Conception Act, which says an embryo becomes “a human person” at the “moment of fertilization.”
In other words, what Parker just did in Alabama, but for every state.
Nineteen Republicans in the U.S. Senate in 2021 sponsored that chamber’s last effort, which included a standard carve-out that said it did not apply as a “prohibition” on IVF treatments or birth control.
In the House that same year, 167 Republicans sponsored a nearly identical bill with the same title and language. But each year the House Republicans do not include the carve-outs for IVF and birth control.
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These bills go nowhere. Nobody expects them to become law with a Democrat like Joe Biden holding the White House. Creating laws is not the point. Those bills were all about courting the furthest right reaches of the Republican base.
But now, with elections looming and the Alabama ruling sparking national outrage, Republicans have some explaining to do about why they agree with Parker.
Republicans rush to support IVF
Speaker Mike Johnson has been a consistent sponsor of the House version of the Life At Conception Act. And he previously supported efforts to restrict the use of IVF and birth control.
But Republicans have to hold the House for Johnson to remain speaker. Guess who declared his support for IVF this week. Well hello Mr. Johnson of Louisiana. That’s some political pliability right there.
The National Republican Congressional Committee, which works to elect members of the party to the House, didn’t have anything to say when I asked if it takes a position on issues like IVF.
The National Republican Senatorial Committee was quick to point to its chamber’s carve-out for IVF and birth control while Congress keeps trying to declare embryos to be actual people. NRSC spokesperson Mike Berg told me that “every Republican Senate candidate in the country” strongly supports IVF.
Conservative groups agree with Alabama ruling
Emma Waters, who focuses on reproductive technology and its bioethics for the Heritage Foundation, a politically influential conservative think tank, supported Parker’s ruling in Alabama and disputed my take that he leaned way too hard on the Bible in his decision.
She insisted the chief justice was just following that state’s law when he extended it from “unborn children in the womb” to “embryonic children” in the lab.
Waters wrote a column last year headlined “Babies Aren’t Disposable, at Any Stage” while advocating against the destruction of any embryo. IVF can produce more embryos than are implanted in the patient. She didn’t have a great answer on what to do with those embryos but noted that some other countries place limits on how many can be created.
Conservatives usually decry federal regulation. But on occasion they embrace it, if regulation can hinder a practice they oppose.
Heritage has also advocated against hormonal forms of contraception, because that could prevent a fertilized egg from implanting in the uterine wall, preventing pregnancy.
And Heritage compiled the latest 920-page edition of its “Mandate for Leadership,” a playbook it hopes former President Donald Trump will use if he wins back the White House. It calls for reinstituting “religious and moral exemptions” for some providers to refuse to supply contraception.
November is coming, and voters will decide
Republicans now find themselves caught between public sentiment about reproductive rights and conservative institutions like the Heritage Foundation as they try to hold onto control of the House and take power in the Senate.
President Biden’s reelection campaign is having a blast, using the attention to remind voters that Trump appointed the Supreme Court justices who helped overturn Roe. The Democratic National Committee is putting up billboards in eight swing states, linking Trump to the IVF controversy.
Trump last week had to say he supports IVF and suggested that Alabama lawmakers fix the problem. But just like he won’t get nailed down on whether he’d support a federal ban for abortion, his campaign is avoiding taking any national stance on IVF.
This was always going to be a challenge for Republicans this year. The Alabama ruling and efforts in Congress to call embryos people mean Republicans are now playing defense on multiple fronts in reproductive rights.
It’s bad policy. And it’s bad politics. And they will own it from now till November.
Follow USA TODAY elections columnist Chris Brennan on X, formerly known as Twitter: @ByChrisBrennan
