Why ‘Fetal Personhood’ Is Roiling the Right

As I.V.F. grew in popularity, so did the concerns of its opponents. Standard practice involves creating multiple embryos, which are screened for genetic abnormalities, and the ones that appear healthiest can be transferred. Extra embryos are often frozen; by one count, there are a million and a half frozen embryos in the United States. After a designated time period, they may be donated to science or destroyed, just as the Catholic Church feared.

The anti-abortion movement won a partial victory for protecting life at conception in 2001, when President George W. Bush banned the use of federal funds for embryonic stem cell research, but President Barack Obama reversed the policy eight years later.

Starting in the late 2000s, voters rejected ballot initiatives to enshrine fetal personhood in at least five states. Voters in deep-red Mississippi looked likely to pass a personhood measure in 2011. But in the weeks before the election, doctors and abortion rights groups warned of the threat to I.V.F. and birth control, and the initiative failed, 58 percent to 42 percent.

In criminal law, however, fetal personhood became entrenched. In 1986, Minnesota passed a law that treated the death of a fetus as a homicide in some circumstances. More than 30 states now “give full recognition to unborn victims of violence,” in the words of the National Right to Life Committee, by applying fetal homicide laws at any point of development in utero. Some states have similarly extended child abuse laws to cover a fetus. Hundreds of women have been prosecuted based on these statutes, often for using drugs during pregnancy, or, in a few cases, after they miscarried.

Politically speaking, it is far easier to crack down on these women, who may struggle with poverty or addiction, than to target the often middle-class and affluent couples who turn to I.V.F. (The procedure costs between $12,000 and $30,000.) The spokespeople for I.V.F. include former Vice President Mike Pence, an evangelical Christian who opposes abortion. Pence and his wife, Karen, used I.V.F., he revealed in 2022. Fertility treatments “deserve the protection of the law,” he said then. “They gave us great comfort in those long and challenging years that we struggled with infertility in our marriage.”