Ron Adar/SOPA Images/Sipa USA via AP Images
Senate Majority Leader Chuck Schumer (D-NY), standing with New York families and children born through IVF, announces the Right to IVF Act vote in the Senate for Tuesday.
Today the Senate will vote on the Right to IVF Act, which would make fertility treatments a federal right enshrined in law. It would supersede state court actions (like the one that was briefly in place in Alabama before the legislature nullified it) that ban in vitro fertilization as part of broader efforts to treat embryos as human beings.
The Senate voted on this same bill in June, and all but two Republicans (including vice-presidential candidate J.D. Vance) voted against it, thereby preventing it from overcoming a filibuster. “Republicans can’t claim to be pro-family only to block protections for IVF,” Senate Majority Leader Chuck Schumer (D-NY) said in a floor speech last week. “The American people deserve another chance to see if Republicans are for access to IVF or against it. It’s that simple.”
Since the Republican vote in June, Donald Trump, still trying to extricate himself from the backlash against the Supreme Court’s revocation of Roe v. Wade, endorsed a concept of a plan that would have the government pay for IVF treatments, or mandate that insurance companies cover it. An insurance mandate is actually part of the Right to IVF Act; a provision of the bill titled the Access to Fertility Treatment and Care Act states that “A group health plan or a health insurance issuer offering group or individual health insurance coverage shall provide coverage for fertility treatment, if such plan or coverage provides coverage for obstetrical services.” That section also limits cost-sharing for IVF and other fertility treatments.
So Republicans will have a choice to make: support Donald Trump’s vision of a government guarantee for IVF coverage, or support their anti-abortion supporters who associate IVF with killing frozen embryos.
Most Republicans are expected to go along with their prior vote. That will help Kamala Harris in her continued insistence that Republicans from Trump on down are threats to reproductive rights. But a few senators who are somewhat at risk in their re-election campaigns might have to think about it a bit.
Every Republican voted on the bill last time except Sen. Eric Schmitt (R-MO), who was absent. It would be surprising if Vance, who has missed every vote since the Senate returned to session last week, showed up to Washington. But Sens. Rick Scott (R-FL), Ted Cruz (R-TX), and Deb Fischer (R-NE) have been present for votes, and they have relatively tight campaigns going on in their respective states.
Each of them dealt with the previous IVF vote in different ways. Fischer, facing a surprisingly strong challenge in Nebraska against independent Dan Osborn, issued a statement on the day of the vote in June insisting on her strong support for IVF, but offering a rationalization for her no vote. “Democrats blocked a Republican-led effort to support IVF earlier this week, so we know their legislation isn’t about protecting IVF access for families. It’s a transparently political attempt to smear Republicans and attack religious organizations,” Fischer said.
The Senate voted on this same bill in June, and all but two Republicans voted against it.
That Republican-led effort was a bill written by Sen. Cruz, along with Sen. Katie Britt (R-AL), whose state threw access to IVF into upheaval earlier this year. The Cruz-Britt bill would have blocked states from Medicaid funding if they banned IVF. But negative right-wing reaction to their bill highlights the bind that conservatives have gotten themselves into with their anti-abortion base.
The Heritage Foundation wrote that the Cruz-Britt bill “misses the point altogether” and doesn’t allow for regulations to take on what it calls “the fertility industry,” for fear that any such actions would trigger the cutoff in Medicaid funding. Heritage said flat out that Cruz and Britt were merely “looking for ways to inoculate themselves against potential political attacks.” From the left, Democrats criticized the bill for expressly allowing certain IVF restrictions in the name of “health and safety standards.” And by pointedly not addressing the part of the process the Alabama court struck down—the destruction of frozen embryos—the bill does not definitively prevent a state court ruling from striking down IVF.
The Senate voted on Cruz-Britt in June and Democrats blocked it. Cruz, who has a narrow lead against Rep. Colin Allred in his Senate re-election, said at the time, “Every Democrat is going to tell voters that if you don’t vote for me, a Democrat, mean Republicans are going to come take away IVF.” Well, yes. And if Cruz votes against the Right to IVF Act again, Democrats will have two data points to use, not to mention the disconnect with President Trump.
Scott, who is facing a stronger-than-expected challenge to his re-election from Democrat Debbie Mucarsel-Powell, has an even bigger bind on his hands. Before the June vote on the IVF bill, he gave a Senate floor speech saying that he supports IVF and that his own daughter was receiving fertility treatments. Then he voted against the bill, calling it “unnecessary.” Instead, he introduced a resolution supporting IVF that would have no force of law.
Then he released an ad showing his support for IVF, one day after voting down the bill that would make it a federal right. Local letters to the editor in Florida called this “hypocrisy at its worst.” And after a second ad was released, local news outlets issued some fairly brutal fact-checks.
After that, Scott introduced legislation to help families pay for IVF treatment through Health Savings Accounts (HSAs), a Bush-era tool that allows pre-tax dollars to pay for medical care. This innovation was sent right out the window when Trump said that either the government should pay for IVF or insurance companies should have to pay for it, not families who get a meager tax deduction on a procedure that costs tens of thousands of dollars.
Sens. Scott, Cruz, and Fischer did not respond to requests for comment from the Prospect on how they would vote today, or whether Trump’s comments have changed their views on IVF and how to pay for it.
Senate Democrats are rerunning this bill both to help the national ticket and to open the gulf wider between Trump’s off-the-cuff comments and the entrenched positions of Senate Republicans. But the specific GOP senators who are put into conflict by this vote have not mounted the best defense. Since there are so few of them, it would be trivially easy to just vote for the Right to IVF Act and be sure that it wouldn’t pass anyway, as the bill would still fall short of the 60 votes required to block a filibuster. But that would get them in trouble with religious conservatives back home.
We so rarely see Democrats target wedge issues that they’ve become like Bigfoot sightings, reduced to the stuff of legend. But on IVF it’s very real, and it’s paying dividends.
