In vitro fertilization process close up. (Getty Images.)
The reproductive rights amendment passed by Ohio voters in 2023 included protections not only for abortion but other health care like miscarriage care and IVF treatments. Fertility doctors say the amendment has been reassuring to patients, but with legal and political challenges remaining, these rights shouldn’t be taken for granted.
When the U.S. Supreme Court overturned 50 years of nationwide abortion rights established by Roe v. Wade in their 2022 Dobbs decision, the question of abortion and reproductive rights came roaring to the fore of American political life. Voters continue to list it as a top concern, along with the economy, democracy, and immigration.
After 57% of Ohio voters passed a reproductive rights amendment in November 2023, legal challenges have been playing out against various Ohio anti-abortion laws, including mandatory 24-hour waiting periods and ultrasounds, and Ohio’s 2019 six-week abortion ban with no exceptions for rape or incest that was put into place for several months after the Dobbs decision. A Hamilton County court temporarily blocked the last in the fall of 2022, and on Oct. 24 struck it down permanently. The Ohio Attorney General has 30 days to appeal.
During the campaign for Ohio’s reproductive rights amendment, IVF was brought up as a right that supporters of the measure were aiming to protect, with the argument that reproductive care of all kinds blended into the needs of IVF patients.
“Issue 1 has been very reassuring to patients,” said Dr. Rachel Weinerman, a reproductive endocrinologist and infertility physician in Cleveland, who had previously seen patients take their fertilized embryos to other states because of the regulations and uncertainty over reproductive rights in Ohio.
Abortion bans were directly linked to fertility care by advocates and medical professionals, because the complications that can come along with IVF treatment, like life-threatening ectopic pregnancies and miscarriages, can necessitate the need for care that can be categorized as abortion care. An ectopic pregnancy requires termination because the pregnancy is not viable and could be dangerous to the pregnant individual, while miscarriages are medically considered “spontaneous abortions.”
“In general, patients who are doing IVF are doing so because they desperately want to have children,” Weinerman said.
But when there’s complications, patients need to have the flexibility to make decisions that may mean the termination of one pregnancy to preserve the possibility of a future pregnancy, flexibility that is helped by the existence of Ohio’s reproductive amendment.
Weinerman said there is still “daily concern” about the implementation and enforcement of last November’s Issue 1 and other challenges to reproductive rights, especially with abortion ban news from other states.
Dr. David Hackney, a Cleveland-area maternal-fetal medicine specialist also doesn’t consider the issue settled just because of the passage of Ohio’s reproductive amendment.
“You never take reproductive rights for granted, and it’s always best to frame things as a continuous situation,” Hackney said.
The interest in an Alabama court case to determine whether a fertilized embryo can be considered legally a human, along with several states discussing so-called “personhood” bills for embryos proved IVF is still on the table as a hot button issue, and presidential candidates and those in Ohio’s race for a U.S. Senate seat have taken their own stances on the issue, among other reproductive rights.
“Since Dobbs, there’s been an outpouring of patient stories,” Hackney said. “That’s made these issues come alive in a way they haven’t before.”
IVF as a galvanizing force
Hackney works with high-risk pregnancies, and has often had patients who used IVF for their pregnancy. In an ideal world, these patients could avoid their pregnancies being talked about in the political realm, but Hackney said awareness is still important.
“I think it’s a critical issue and, even for individuals who are not directly impacted by pregnancy itself, many of the laws are assaults against autonomy,” Hackney said. “Once you establish a precedent for government interference in our private lives, then what is the next barrier after that? And the next barrier after that?”
Some barriers already exist in the reproductive rights space, including IVF, for communities of color. The same complications that are possible for other pregnant individuals are present for Black women, but the outcomes are often different.
“Black women, when they finally get to the point of delivering, they still have higher rates of maternal mortality and complications,” said Linda Goler Blount, president of the DC-based Black Women’s Health Imperative. “That goes back to when Black women complain something doesn’t seem right, they’re less likely to have those complaints followed up on, even with all the extra monitoring and specialists that come with IVF.”
Laws defining personhood to include fertilized embryos and limiting abortion services only make things more complicated during a process with patients who have often had struggles getting pregnant despite their desire.
“You are actually limiting the ability of people who want to have children to have those children and for people to have families,” Weinerman said.
An election report on IVF from the UCLA Center on Reproductive Health, Law and Policy found that presidential candidates on both sides of the aisle “have portrayed themselves as protective of this popular reproductive health care.”
Democrats have largely been in support of reproductive rights and Vice President Kamala Harris has said she would sign a law to create a federal right to abortion, and she’s given broad support to IVF.
Former President Donald Trump has wavered in his opinion of abortion, but in August, he said he would support a plan to have the federal government pay for IVF treatments.
“But the Republican Party platform, Republican legislative efforts and Project 2025 – a presidential transition project led by former Trump administration officials – reveal persistent party support for ‘personhood,’” the UCLA report stated.
Personhood, the UCLA report said, is “irreconcilable with the current standard practice for IVF, which often involves the creation of more embryos than are used.”
The public, for its part, is “overwhelmingly” in favor of general access to IVF, according to a Pew Research Center survey conducted earlier this year.
The study found that 7 in 10 adults say IVF access “is a good thing,” a majority that extends across religious and political lines. Of Republican and Republican-leaning independents, 63% support IVF, and 79% of Democrats and those leaning Democratic support it.
Survey-takers’ stance on abortion didn’t change their opinion on IVF much either, according to Pew, with 60% of those who believed abortion should be illegal still supporting IVF treatment.
Goler Blount said it’s time that Americans understand that while medical decisions should be decided in private, the government is now a part of those decisions.
“We have no choice, because it’s not just a decision between a person and her provider, because a provider, depending on where they are, has to weigh the possibility of prosecution,” Goler Blount told the Capital Journal.
For her, the increased participation of women in elections shows the progress that is being made in engaging voters based on their needs and their opinions of what government control should look like.
“I think with every successful election, we’ll see more women supporting abortion as health care and IVF support, and the full complement of health care,” Goler Blount said.
In Ohio, Democrats in the House introduced a bill to provide “clarity” to medical professionals as they work with IVF patients. The measure was brought up following the Alabama legislature’s passage of legislation protecting IVF, following that state’s supreme court decision deeming fertilized embryos as people.
The Ohio bill has not seen action since it was introduced in April.
IVF protection bills from both parties were attempted in the U.S. Congress in September, but both were blocked in the U.S. Senate.
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