Anna Claire Vollers | (TNS) Stateline.org

Marilyn Gomez was sitting at her kitchen table in Charlotte, North Carolina, on Feb. 16 when news alerts and friends’ texts began pinging her phone: The all-Republican Alabama Supreme Court had ruled that frozen embryos created through in vitro fertilization were children under state law. That meant providers could be held liable for discarding them, a common part of the IVF process.

As Alabama clinics began suspending IVF services and public outrage mounted, politicians on both sides scrambled to distance themselves.

In Gomez’s quiet kitchen, it all felt deeply personal.

“I remember thinking, this is the only way I was able to become a mother,” Gomez told Stateline. She and her husband went through years of fertility treatments and multiple rounds of IVF before the birth of their daughter in 2016. Without freezing her embryos and going through IVF, she said, “I would not be a mom. My 8-year-old would not be here.”

Gomez owns a small business, called Infertile Tees, where she designs and sells shirts and accessories aimed at people experiencing infertility. Less than two hours after hearing about the Alabama court ruling, Gomez, who describes her political views as Democratic-leaning, had created a new set of T-shirt designs featuring the slogan “Protect IVF.”

In the wake of the Alabama ruling, potential threats to IVF access have become an election-year issue, pushing many political novices toward involvement and activism. Reproductive rights groups say they’ve seen unprecedented interest in protecting IVF access, and Democrats hope it will motivate voters in the swing states that will decide the election, including North Carolina.

At least 19 states — either through state law, criminal statutes or case law — have declared that fetuses at some stage of pregnancy are people, according to a 2023 report by Pregnancy Justice, a nonprofit that conducts research and advocates for the rights of pregnant people, including the right to abortion. Such statutes could, in theory, be used to restrict or ban IVF by classifying the destruction of embryos as causing the death of a child. The Alabama high court cited so-called fetal personhood language in the state constitution when it issued its decision.

Medical workers and IVF patients listen during a news conference on access to in vitro fertilization treatments outside of the U.S. Capitol Building on June 12, 2024, in Washington, D.C. (Anna Moneymaker/Getty Images/TNS)

North Carolina isn’t one of those 19 states, but conservatives there have been testing the waters.

A bill proposed last year by three Republican state representatives would have banned abortion from the moment of fertilization, and last year an appeals court judge terminated a woman’s parental rights for conduct during her pregnancy because “life begins at conception,” though the opinion was later withdrawn.

Michigan, Pennsylvania and Wisconsin, all swing states, do have laws that include references to “unborn children.” And in Georgia, another contested state, the state’s abortion ban defines a person as “any human being including an unborn child.”

Democrats are eager to highlight the issue. The newly minted Democratic vice presidential candidate, Minnesota Gov. Tim Walz, has been outspoken about the seven years of fertility treatments he and his wife, Gwen, went through before conceiving.

“This is very personal for my wife and I,” Walz told a crowd in Eau Claire, Wisconsin, last week. “I remember each night praying that the call was going to come, and it was going to be good news. The phone would ring, tenseness in my stomach, and then the agony when you heard the treatments hadn’t worked.”

Republicans say the idea that IVF is under threat is overblown, and dismiss Democratic warnings as scare tactics.

“There is no concerted Republican, conservative, pro-life effort mounting against IVF,” said Cole Muzio, executive director of Frontline Policy Action, a Georgia organization that lobbies for abortion restrictions and other conservative policies.

“I think this is something the left largely has tried to use as a wedge issue, but I don’t think most people are buying it as something that’s a real threat,” he said.

But Muzio acknowledged that some anti-abortion advocates have asked his organization to talk more publicly about IVF. And he predicted that eventually, more conservative lawmakers will turn their attention to the issue.

“Long term, we believe in the value of human life, and that’s my concern with IVF, that it results in the discarding of human life,” he said. “Now that Roe has been overturned and we’re able to have legislative conversations and think about where life begins, it’s an important conversation to have.”

Following public backlash over the Alabama court decision, lawmakers in a dozen states, including Alabama, introduced bills to protect IVF, according to the Guttmacher Institute, a research organization that supports abortion rights.

But so far, only Alabama has enacted a law. In March, Alabama’s Republican-majority Legislature hastily passed a measure shielding IVF providers from criminal and civil liability. The only other bill that gained traction was one in Louisiana, where both legislative chambers approved it. However, it was scuttled in May after the state’s powerful anti-abortion lobby opposed the removal of fetal personhood language that would have left IVF providers open to criminal prosecution and civil lawsuits.

Far-reaching consequences

For many people, the IVF issue illustrates how fetal personhood laws can have consequences far beyond abortion. And it has energized them.

The National Infertility Association, which goes by the name Resolve, has held a national advocacy day annually for more than two decades. This year, after the Alabama Supreme Court decision, more than a thousand people attended the event virtually, twice the number that attended last year, said Barbara Collura, CEO of Resolve.

“We ended up with our largest advocacy day ever,” she said. “More than half of the people attending were brand new to the event. We feel very much that what happened in Alabama motivated people to figure out a way for themselves to get involved.”

In North Carolina, Gomez sold out her “Protect IVF” T-shirts within 24 hours. She launched a new batch a week later, and sold out again. Since then, she’s continued selling new “Protect IVF” designs, donating a portion of her proceeds to Resolve.

Before getting involved in IVF advocacy, Gomez said she barely paid attention to politics. Now, she’s been active in supporting pro-IVF legislation and contacting her state lawmakers. And she often fields Instagram messages from customers in other states who are scared, she said, and want to know what they can do.

“People are saying to me they didn’t know IVF was on the line, that they were surprised it wasn’t protected in every state,” said Gomez, who sends them links to sites where they can learn more about the state of IVF access where they live. “Customers are saying their parents and grandparents are having these conversations in their social circles, saying they wouldn’t be grandparents without IVF.”

She added: “I think we forget how much power we have. Regardless of what happens with the presidency, we have so much control over what happens in our state.”

‘New territory’

Less than two weeks after the Alabama court decision, Jamie and Dontez Heard stood at one end of a long hallway on the fourth floor of the Alabama State House, staring nervously at all the doors of state lawmakers’ offices. They considered turning around and going back home.

“It was intimidating, and it was scary, not knowing what to say, thinking, ‘I’m going to stumble over my words,’” Jamie said. “What if I say the wrong thing? Neither one of us has ever been in any type of advocacy role, so this was new territory.”

The couple had driven down to Montgomery that morning from their home in Birmingham, anxious but determined to defend their chance at having another baby by convincing their legislators to save in vitro fertilization.

The court decision had landed just two days after the couple met with a specialist in Birmingham to begin a new round of IVF. They’d conceived their son, Legend, now 2, through IVF in 2022 after years of struggling through infertility. They’d hoped to add another child to their family this year.

“It was devastating,” said Jamie. “We didn’t understand what it meant for us and our family.” But a few days after the ruling, she saw a social media post that her fertility clinic had shared about a gathering of IVF families and supporters at the state Capitol.

“I knew then that we needed to be there,” she said. “We couldn’t afford to sit on the couch and wait and see how this plays out.”

Since speaking to Alabama lawmakers, Heard has testified before Congress and traveled to other states to advocate for federal and state laws that would protect access to IVF.

Next door in the battleground state of Georgia, one of the biggest reproductive justice advocacy organizations in the Southeast recently launched its first-ever Black (in)Fertility Awareness Week. SisterSong, which is focused on reproductive rights for women of color, hosted a panel, documentary screening, online discussions and a raffle of $40,000 in fertility services for Black Georgia families.

Leah Jones, director of maternal health and birth equity at SisterSong, said the new initiative had been in the works for a while, but the Alabama ruling highlighted for people how IVF access is connected to other reproductive health issues, from preconception through pregnancy to postpartum.

“What we realized when we started this conversation around infertility in Black communities and listening to their stories, these are the same people talking about maternal health, abortion, mental health, birth justice,” said Jones. “Once you make the connection that this is part of an attack on overall bodily autonomy, I think that’s when it clicks for people.”

Even in Minnesota

As Minnesota’s governor, Walz in 2023 signed a law confirming the right to abortion and other reproductive health care in Minnesota.

And yet Minnesotans like Miraya Gran felt the shockwaves from the Alabama court decision. Gran and her husband struggled for years with infertility before finally conceiving their daughter Isla, now 3, through IVF.

Gran advocates for a Minnesota law that would require health insurers to cover fertility treatments.

“We saw some great momentum after the Alabama decision,” said Gran. “It didn’t really matter which political party you were a part of. If you believed in access to IVF, you joined our group.”

Gran said she considers Minnesota a “safe state” for IVF access and other reproductive rights, at least for now. “But we look to our neighbors in Iowa, where they introduced some personhood bills recently. It’s terrifying. It’s too close to home.”

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Stateline is part of States Newsroom, a national nonprofit news organization focused on state policy.

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