In vitro fertilization (IVF) faces an uncertain future in Kansas if the abortion amendment on the August 2nd ballot passes.
The U.S. Supreme Court recently overturned precedent on Roe v. Wade, allowing states to ban abortion. Voters now have a direct say in whether abortion remains legal in Kansas.
If the abortion amendment passes with a “yes” vote, then the Kansas legislature can ban abortion under any circumstance. If the amendment fails with a “no” vote, then abortion remains legal but heavily restricted in Kansas.
What is IVF?
Quoting the Mayo Clinic, IVF “is a complex series of procedures used to help with fertility or prevent genetic problems and assist with the conception of a child.”
IVF involves medication and surgery to implant fertilized eggs in a uterus. It often involves fertilizing multiple embryos to increase the chance of a successful and healthy pregnancy.
The Centers for Disease Control estimates that about 2 percent of annual American births occur via IVF. Americans who use the procedure often face infertility challenges and recurrent miscarriage due to genetic problems.
How do abortion bans affect IVF?
Vague language in state abortion bans threatens IVF. Many bans declare that life begins at fertilization. They criminalize terminating fertilized embryos and the broad wording in many can readily be interpreted as criminalizing IVF. Indeed, doctors are widely concerned that abortion bans might soon be used to ban or limit IVF.
The easy “fix” to safeguard IVF is for politicians to explicitly exempt it from abortion bans. However, many conservative politicians are reluctant to do that.
A recent Washington Post analysis documents that dozens of anti-abortion bills introduced in state legislatures since 2010 fail to explicitly safeguard IVF. That includes Kansas.
This year, a conservative lawmaker in Kansas introduced House Bill (HB) 2746. It bans abortion except in very limited circumstances, with no exception for rape, incest, or many threats to a woman’s life or health. It makes no apparent exception for IVF.
HB 2746 didn’t pass, but the Republican House Majority Leader didn’t rule out considering it in 2023 when speaking to the Kansas City Star.
Why not shield IVF?
National surveys show that only about 15 percent of Americans consider IVF immoral. That minority skews toward Republican-leaning religious conservatives.
Many conservative politicians who are anti-abortion might worry that defending IVF will anger Republican primary voters, perhaps fearing twisted campaign accusations of being “pro-abortion.”
Other conservative politicians openly oppose IVF on moral grounds, though they rarely propose banning it. The closest Kansas has come to an IVF ban is when Republicans considered Senate Bill 302 in 2014. That bill, which failed, criminalized surrogate pregnancy in Kansas, and applied to IVF and artificial insemination.
How does August matter?
If the August abortion amendment fails, then the Kansas legislature cannot pass an abortion ban that might ultimately threaten IVF in our state.
But, if the abortion amendment passes, then the Kansas legislature could pass an abortion ban like HB 2746 that doesn’t safeguard IVF. That would leave the legal status of IVF in Kansas in limbo.
Some conservative lawmakers might be perfectly content to intentionally “oops” their way into threatening IVF despite there being an easy out to that situation. But, the easy political choice for politicians could cost Kansans seeking fertility treatment, and ultimately harm Kansas families.
Patrick R. Miller is an Associate Professor of Political Science at the University of Kansas.