For more on the Amy Coney Barrett hearings this week, check out our full coverage.
Supreme Court nominee Amy Coney Barrett’s views on abortion are among her most extreme. But during her confirmation hearings this week, it was clear that, if confirmed, Justice Barrett would pose a threat to IVF treatments as well.
It might not seem like abortion and infertility treatments have much in common: A person gets an abortion to stop being pregnant, while a person undergoes infertility treatments to become pregnant. But both communities are fighting for the same thing—their right to self-determination.
Barrett’s confirmation threatens that right for both communities.
The judge supports fetal personhood—the idea that life begins at conception—and would legally enshrine this belief into law. While personhood advocates like Barrett argue they’re protecting the sanctity of life by equating a developing pregnancy with an already-born person, giving embryos full constitutional rights would upend the services many people rely on to build their families.
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“Personhood measures seek to change U.S. law to define life as beginning at the moment of conception or fertilization,” said Karla Torres, a senior staff attorney at the Center for Reproductive Rights. “Anti-reproductive rights advocates conflate fertilization with personhood and advocate that legal personhood should adhere at fertilization.”
The first personhood bill came just a week after the Roe v. Wade decision in 1973—and state lawmakers have introduced more than 300 similar bills ever since. Though most of these attempts have been unsuccessful, three states—Alabama, Kansas, and Missouri—have passed laws containing personhood language.
In addition to criminalizing abortion, personhood laws would recognize every embryo created as a legal person, thereby threatening in vitro fertilization (IVF), a critical method of infertility care.
During the IVF process, a patient takes medication to stimulate the ovaries into producing multiple eggs. Ideally the process would produce up to one to two dozen eggs to increase the odds of success. (In a typical menstrual cycle, the ovaries release one egg.) A physician then removes these eggs from the ovaries, and they are fertilized in the lab. Not all of the eggs will become embryos, and among those that do, not all of the embryos will be viable. After three or five days, a physician transfers one or two of the fertilized embryos directly into the uterus; the rest of the embryos are frozen. In other cases, all of the embryos are frozen and saved for later use and/or screened for chromosomal abnormalities. Approximately 1 percent to 2 percent of births every year are the result of IVF, but inevitably, the process might involve the destruction of some embryos.
Personhood laws would not only criminalize the destruction of embryos, but they would also make the IVF process fraught and legally precarious.
“If you put an embryo in a patient and she doesn’t get pregnant, can you really promise that the doctor is not going to be criminally negligent?” Dr. Kristen Cain, a fertility specialist at Carolinas Fertility Institute in North Carolina, said.
“If a patient has a miscarriage, can you really promise that patient’s not going to be charged with murder? Those are the things that come up with personhood bills.”
Cain has been fighting personhood bills in North Carolina for almost a decade. Advocates for personhood in the state have called her colleagues a baby killer and have threatened to shut down her clinic. Her experience is not uncommon and makes explicitly clear how restrictions to abortion and IVF are intrinsically tied.
Abortion can be a necessary and critical part of IVF—to terminate nonviable pregnancies or to reduce high-risk pregnancies involving multiple fetuses through selective reduction. This means accessing abortion and accessing IVF care are not mutually exclusive.
“It’s important to remember that there isn’t one kind of person who has IVF and one kind of person who has abortions—they’re often the same person at different life stages and circumstances,” Dr. Diane Horvath, an OB-GYN and abortion provider in Baltimore, said.
While people with infertility are used to advocating for their right to medical services, it can be hard for them to talk about abortion, said Casey Berna, a social worker in the infertility community.
“Feelings of grief, loss of self-determination, obstacles to accessing care, and the politicization and stigma of personal medical decisions are commonalities that patients experiencing infertility and abortion both can face,” Berna said.
Abortion rights advocates and organizations that support people living with infertility are also concerned about Barrett’s support for personhood. Personhood bills would negatively impact both abortion access and access to IVF services. Some states would remain safe havens to access while others would lose all their IVF clinics, forcing patients to travel out of state.
“Barrett wouldn’t have this effect on every state because not every state is going to pass these laws, but some states will try and those states will lose their IVF clinics because the doctors are going to say, ‘This is an unfriendly environment, we’re not going to be able to support ourselves here, we’re at very high risk of murder charges,'” Cain said.
That sentiment was echoed by Susan L. Crockin, an attorney with the American Society for Reproductive Medicine.
“If an embryo or fetus is considered a legal person, doctors who attempt to save their patient with a life-threatening ruptured ectopic pregnancy, or embryologists who drop a petri dish, could be at risk of manslaughter or murder charges,” Crockin said at a press conference last week.
These laws would also more adversely affect marginalized patients. “All birthing people would be at risk,” Erica McAfee, a Black maternal health advocate, said. “But more so those who are marginalized and may not have the resources to have access to abortion in another state/country where it is legal.”
Barrett’s stance even prompted Fertility and Sterility—the leading medical journal for fertility-related matters—to write an op-ed condemning her nomination, arguing that her appointment to the bench risks setting back reproductive freedom decades and directly “threatens those who seek to build a family through in-vitro fertilization.” It was the journal’s first-ever statement on a judicial nominee.
IVF costs could also increase with personhood laws. IVF is cost-prohibitive for a lot of people; an average cycle of treatment can cost up to $20,000. Harvesting more eggs increases the likelihood that IVF is not just a one-time cost—but up to $100,000. In addition, only 19 states mandate insurance companies cover infertility, and even those coverages can vary, as plans can set lifetime insurance caps or rigidly define what constitutes infertility, thus placing IVF treatment out of reach for many people.
But as with abortion access, people with the means and access will always be able to access IVF treatment.
“I suspect that Amy Coney Barrett would maintain that it’s about ‘saving the embryos,’” Horvath said. But “just as with abortion, rich people will always be able to access IVF somewhere else if it’s made illegal in the U.S.”
Conservatives will not rest until their racist ideal of controlling who can and cannot become parents becomes a reality—Barrett’s views and her nomination proves that. Her beliefs are a strong illustration not of some fringe view, but of a logical conclusion to laws restricting abortion and reproductive freedom. Her opposition to abortion shows how these issues—abortion, contraception, and IVF—are tied, and how restrictions to reproductive freedom are hardly about life or family values but a means of controlling who can and cannot become pregnant.