The health and human services secretary, Xavier Becerra, said the US must provide federal protections for reproductive rights if Americans hope to avoid further restrictions on in vitro fertilization, contraception and abortion in an exclusive interview with the Guardian.
Becerra’s comments come in the wake of an Alabama supreme court decision that gave embryos the rights of “extrauterine children” and forced three of the state’s largest fertility clinics to stop services for fear of litigation and prosecution. The fallout from the decision prompted the Alabama legislature to hastily sign new legislation that will give IVF providers with immunity from civil and criminal suits, which the governor signed into law on Wednesday night.
He said the events in Alabama were linked directly to the “take-down” of Roe v Wade, a decision that provided a constitutional right to abortion grounded in privacy and was overturned by conservative US supreme court justices in 2022.
“It wasn’t until this new court came in” – that is, that three new supreme court justices were confirmed by former President Trump – “that we saw the attacks on Roe v Wade take hold, and today without Roe v Wade there are women who are trying to have babies in Alabama who are facing the consequences,” said Becerra.
He continued: “None of this would be happening in Alabama on IVF if Roe v Wade was still the law of the land, and no one should try to deny that.”
Becerra’s comments come ahead of Joe Biden addressing the nation in the State of the Union on Thursday night. Although the White House has not released the speech, a large number of Democratic guests suggest reproductive rights may feature heavily.
Among the guests of high-ranking Democrats are Elizabeth Carr, the first person in the US to be born via IVF; Amanda Zurawski, a Texas woman who nearly died of septic shock when she was denied a medically necessary abortion; and Kate Cox, who had to flee Texas for an abortion after she learned her fetus had a fatal chromosomal condition.
Hundreds gather at a rally for IVF legislation on 28 February 2024, in Montgomery. Alabama lawmakers are nearing approval of immunity legislation to shield providers after a state supreme court ruling equated frozen embryos to children. Photograph: Mickey Welsh/AP
Also, sitting alongside First Lady Jill Biden as a guest of the president will be Latorya Beasley, from Birmingham, Alabama.
She and her husband had their first child, via IVF, in 2022. They were trying to have another child through IVF but Beasley’s embryo transfer was suddenly canceled because of the Alabama court decision.
Beasley’s “recent experience is yet another example of how the overturning of Roe v Wade has disrupted access to reproductive health care for women and families across the country,” the White House said on Thursday.
More guests include reproductive endocrinologists, an Indiana doctor who provided an abortion to a 10-year-old rape victim, and leaders of reproductive rights groups.
Becerra’s comments emphasizing the importance of reproductive rights, Democrats’ guest list for the State of the Union and a recent administration officials’ trips to states with abortion restrictions are the most recent evidence of Democrat’s election bet: that when Republicans married the motivated minority of voters who support the anti-abortion movement, they also divorced themselves from the broader American public, broad margins of whom support IVF, contraception and legal abortion.
“As a result of the fall of Roe v Wade – or actually the take-down of Roe v Wade – my daughters have fewer rights in America than their mom did,” said Becerra. “And that happens only when you have a supreme court that acts to overturn a constitutional protection.”
While Becerra said his agency would continue to enforce federal laws in Alabama, including laws that provide medical patients a right to privacy and the right to stabilizing emergency care, including emergency abortions, it is ultimately the courts in and politicians of Alabama who need to fix the upheaval their policies caused.
“The supreme court in Alabama is the one that has to undo its wrongful decision,” said Becerra. “The state legislature in Alabama should move to provide protections to families that rely on IVF – and serious comprehensive protections, not short-term, piecemeal protections that threaten anyone going through the process or any provider who wishes to provide quality IVF services.”
Although Alabama politicians have passed a bill to give IVF providers immunity from civil and criminal suits, national associations of fertility doctors have said the law does not go far enough to address the core problem – the supreme court “conflating fertilized eggs with children”.
“Clearly, this goes way beyond abortion,” said Becerra. “It would not surprise me if we also begin to see actions which undermine the ability of women to get basic family planning services,” including contraception.
While doctors and patients have reacted with astonishment, anger and sorrow at the Alabama supreme court’s decision, the anti-abortion movement has cheered the decision. “Fetal personhood” has long been the ultimate aim of the movement.
For years, Republicans have abetted this aim. As recently as 2023, 124 Republicans co-sponsored the federal Life at Conception Act, which would give embryos the rights of people “at the moment of fertilization, cloning, or other moment when the individual comes into being”. This week, Kentucky Republicans advanced a bill to allow people to claim fetuses as dependents on their taxes.
They have also blocked federal legislation to protect IVF – twice. In late February, Senator Tammy Duckworth of Illinois introduced an IVF protection bill. Most recently, its expedited passage was blocked by Republican Senator Cindy Hyde-Smith of Mississippi (a state which, like Alabama, has a near-total abortion ban).
Nevertheless, the Alabama decision has been palpably uncomfortable for many members of the party. Former president Donald Trump has said he supports IVF, and views anti-abortion policies as a threat to his campaign. Republicans such as Tommy Tuberville of Alabama and Joni Ernst of Iowa have issued awkward, noncommittal statements about the decision. Ernst supported federal fetal personhood statutes in the past.
“When Roe v Wade was struck down by the Dobbs decision the Pandora’s box was opened,” said Becerra. “Now, we see the consequences and how far the loss the protections of Roe go beyond abortion.”
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