Claim that IVF and birth control could go away under personhood laws needs context

Michigan Democratic U.S. Rep. Elissa Slotkin, is attacking her U.S. Senate opponent, Republican Mike Rogers, on his past support for restricting abortion, saying he backed laws that could affect access to other health care services. 

In a TV ad that began airing Sept. 11, Slotkin’s campaign said that while he was in Congress, Rogers supported "laws that could eliminate IVF and birth control." IVF stands for in vitro fertilization.

The ad offered a list of anti-abortion positions Rogers took when serving in Congress from 2001 to 2015. To support the claim about IVF and birth control, the ad cited Rogers’ support for "fetal personhood" bills, including the 2013 Life At Conception Act, which Rogers co-sponsored. 

That bill, which never received a vote in the House, said "the right to life guaranteed by the Constitution is vested in each human being" beginning at the moment of fertilization. The bill would have granted constitutional protections to embryos from the moment of conception. 

Legal experts told PolitiFact that legislation posed a threat to IVF, a fertility treatment that involves freezing multiple fertilized embryos and choosing some to implant with the goal of beginning a pregnancy. It also could have limited access to some forms of birth control. 

During Rogers’ time in Congress, he supported several measures to restrict and outlaw abortion. Rogers has distanced himself from that position during this Senate campaign and says he respects Michigan’s voter-approved 2022 constitutional amendment to protect abortion access. 

Rogers said in 2023 he did not vote on the constitutional amendment because he was a Florida resident then, adding he "probably wouldn’t have" voted for it if he could.

In a statement to PolitiFact provided by a Rogers campaign spokesperson, Rogers said he believes decisions about a woman’s pregnancy "should be made solely by her, her family, her doctor, and her God." He said he will respect Michigan’s laws as senator, including "protecting and expanding access to IVF."

Slotkin’s campaign declined to comment. 

While in Congress, Rogers supported at least four bills that would have defined an embryo as a "person" at the point it is fertilized, giving the embryo rights and legal protections from the moment of conception.

He co-sponsored legislation with that language in 2005, 2008, 2009 and 2013. None of these proposed laws included specific protections for fertility treatments. 

Legal experts told PolitiFact that laws defining personhood as beginning at conception would likely severely restrict access to IVF. 

IVF involves collecting eggs and fertilizing them in a lab, then implanting one or more embryos in the uterus. The unused embryos can be frozen for future use, donated or discarded. 

Classifying embryos as people would present ethical dilemmas involving the transport, storage and destruction of embryos used in IVF, Drexel University law professor David S. Cohen said. Cohen said personhood legislation would "be the death of the IVF industry."

"If the person who wants to be pregnant no longer wants to have any more pregnancies, destroying the embryos, which is a normal part of IVF, would be illegal, because you can’t destroy a person," he said. 

Earlier this year, the Alabama Supreme Court ruled that people could sue fertility clinics under the state’s Wrongful Death of a Minor Act after their embryos were accidentally destroyed, because the court considered the embryos "unborn children." After swift public backlash and some fertility clinics pausing treatments, the Republican-controlled Alabama Legislature passed a law shielding IVF providers from liability for embryo destruction.

Some anti-abortion groups argue that IVF could continue despite laws that grant personhood to embryos. The Heritage Foundation, a conservative think tank, advocates for legal restrictions on the IVF industry, including limiting the number of embryos created during treatment, preventing destruction of embryos and limiting the number of embryos implanted at a time.

Mary Ziegler, a University of California, Davis law professor and abortion historian, said it’s possible IVF could continue under personhood laws.

"There are different ways I've seen people suggest that this could happen," Ziegler said. "You’d have to implant every embryo you created or maybe you could implant or donate to another couple every embryo that you created, because that would be consistent with the idea that the embryo is a person." 

Providing IVF treatments under personhood laws would be impractical and likely would lead to worse outcomes for people trying to conceive, according to a 2023 paper by fertility doctor Gerard Letterie and law professor Dov Fox. 

The paper notes that under fetal personhood bills, people could donate unused embryos, or treatment centers could create a limited number of embryos during the initial stages of treatment, but each of those options presents challenges. 

The paper points to Italy, which enacted a 2004 law that required IVF treatment providers to create no more than three embryos at a time and implant all embryos during each treatment. The law made the process less efficient, less successful for older patients and resulted in some people leaving the country to access IVF elsewhere.

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The paper’s authors said that limiting the number of embryos produced during IVF treatment is "​​a flawed process divorced from the patient’s interest of best outcomes in the shortest period with maximum future options." 

Letterie, a reproductive endocrinologist and IVF provider in Seattle, told PolitiFact the personhood laws could expose providers to criminal liability if they mistakenly destroy embryos. He said he believes IVF providers would decide the risk is too high and stop offering treatment.

"The burden of laboring under that potential legal action, no one’s going to do that," he said. "It will sadly, I think, result in the end of what we do."

Fetal personhood laws’ impact on birth control access is less clear, but at least some forms would be at risk of criminalization. 

Most hormonal birth control methods, such as the birth control pill, work by preventing ovulation. This means there is no egg to be fertilized, which prevents pregnancy. Based on that understanding, these forms of birth control shouldn’t be affected by legislation that grants legal rights at contraception. 

Some forms of contraception, including certain types of intrauterine devices and emergency contraception, may prevent pregnancy after fertilization by blocking a fertilized egg from implanting in the uterus. Emergency contraception also can prevent ovulation.

If a fertilized egg is treated as a person, emergency contraception potentially could be banned. 

"If you’re talking about the birth control pill, you don't have an embryo yet, so scientifically there shouldn’t be a ban, but I think we’ve seen pretty clearly that legislators who want to ban things like birth control or the morning after pill or abortion kind of play fast and loose with those facts," American University law professor Jessica Waters said. 

All that said, the bills Rogers supported would not have banned either IVF or birth control. They would have set a standard that judges would have to follow to determine those procedures’ legality. That means one judge might consider some forms of birth control or IVF to violate a personhood law, while another judge might not, Waters said.

"That’s the point of this really broad language, it allows for a fair amount of discretion on the part of judges or prosecutors," she said. "But then it’s the question of how is that discretion used." 

Slotkin said Rogers supported "laws that could eliminate IVF and birth control."

From 2005 to 2013, Rogers supported legislation that would define embryos as legal people from the moment of conception, giving embryos constitutional rights. Now, Rogers says he would support protecting and expanding IVF access.

IVF as it’s currently practiced involves destroying embryos, and that would be unworkable under laws that define personhood as beginning at conception. IVF could still be legal under personhood laws, but experts said the procedure would likely be more expensive and have lower success rates, and providers could exit the industry because of liability risk.   

Some forms of birth control that prevent pregnancy after eggs are fertilized could be at risk of criminalization. But other forms of contraception that prevent ovulation likely would not be affected. 

The statement is partially accurate but leaves out important details. We rate it Half True.