On Monday, October 26, the US Senate confirmed Amy Coney Barrett to the Supreme Court in a 52-to-48 vote, with all but one Republican, Susan Collins of Maine, voting to confirm. Barrett was nominated by President Trump to fill the vacancy created by the death of the feminist icon Justice Ruth Bader Ginsburg last month. Her nomination sped through the Senate’s Judiciary Committee, which held only three days of hearings on the candidate’s qualifications.
Barrett is a practicing Catholic and outspoken opponent of abortion, and Democratic senators, unsurprisingly, used the hearing to grill her on her views on Roe v. Wade, the landmark 1973 judicial decision that established that a woman’s right to privacy, as enshrined in the US constitution, extends to her right to choose to have an abortion.
Everyone expected that abortion would take centre stage at Barrett’s confirmation hearings. Few expected in vitro fertilisation, or IVF, would even make an appearance.
Then, the day before Coney Barrett’s Supreme Court hearings began, a group of fertility doctor’s published an open letter in Fertility & Sterility, the medical top journal for the disciple, which decried Coney Barrett’s nomination, noting that, “The seating of Amy Coney Barrett to the Supreme Court threatens those who seek to build a family through in-vitro fertilization,” due to her “fringe, anti-science stance” on personhood and embryonic rights. During her confirmation hearings, Senators Patrick Leahy (D-VT) and Richard Blumenthal (D-CT) took up the issue of IVF, pressing Barrett on whether she would support legislation which restricted access to the procedure.
The British press had been quick to link Barrett to anti-IVF groups, even before the publication of the letter in Fertility & Sterility. As with much British coverage of American politics, the undertone of this reporting was “look at these crazy Americans, once again allowing religion to trump science.” When it comes to IVF politics, however, the British should not be too quick to paint Americans as occupying the anti-scientific fringe.
The first successful IVF birth took place in Oldham hospital 42 years ago. Less than a decade later, Britain came close to being the first country to pass embryonic personhood legislation. On 5 December 1984, Enoch Powell, the long-serving MP for the Conservative and Ulster Unionist Parties who in 1968 famously decried the “rivers of blood” that would flow in the streets of Britain if more were not done to rein in non-white immigration, proposed a private member’s bill that would have sharply curtailed IVF procedures and outlawed all embryonic research aimed at increasing IVF’s efficacy. The bill passed its second reading in the House 238 to 66; made it out of committee despite opponents’ attempts to filibuster the legislation; and secured a debate on its third reading before finally being stymied by a procedural measure.
Despite the thirty-five years that have intervened between the House vote on the Powell bill and the current debate on Coney Barrett’s confirmation, the concerns at issue between proponents and opponents of IVF have barely shifted. Powell titled his legislation, provocatively, the “Unborn Children (Protection) Bill.” The bill stipulated that any doctor seeking to effect an IVF pregnancy must obtain specific permission from the Secretary of State for Health to retrieve and fertilize the eggs of a designated woman for fertilization and implantation in that woman’s uterus. The strict terms of the bill thus made illegal embryo research, surrogacy, the donation of either eggs or embryos, and, arguably, ovarian hyperstimulation and embryo freezing.
Since the inception of IVF, fertility doctors have encouraged the hyper-stimulation of ovaries and fertilization of multiple eggs per IVF cycle. The logic is that, if several eggs fertilize successfully, the patient will have better odds of one of the resulting embryos successfully implanting in her uterus and resulting in a viable pregnancy. In the earliest days of the procedure, fertility doctors were inclined to implant multiple fertilized embryos at once, a policy that increased the chance of a resulting birth, but also increased a probability of multiple pregnancies, with attendant risk and complications for mother and babies. By the early 1980s, doctors had developed “vitrification” or freezing techniques, which would allow them to implant only one or two embryos at a time and freeze the remainder for later use.
If the first embryo transfer fails, a patient can try again using her frozen embryos. If the first transfer succeeds, however, the super-nummary embryos are often either destroyed or donated for scientific research, a practice which Powell, as well as, presumably, Amy Coney Barrett, perceived to be a violation of those embryos’ right to life. (I write “presumably,” as Barrett has never gone on the record explicitly about IVF and refused to comment on her views on IVF – or any other issue – during her confirmation hearings. Her views on IVF have been presumed as a consequence of her association with anti-IVF groups.) As the Powell bill worked its way towards its Third Reading, the St. Mary’s Hospital, Manchester, obstetrician Brian Lieberman wrote to MPs noting that its mandate to “replace all embryos back into the uterus” was “obviously wrong” and dangerous to maternal health.
In addition to avoiding the risk of high-order births, embryo freezing also allows for a delay between fertilization and implantation that can facilitate pre-implantation genetic diagnosis of congenital disorders (PGD). At the time of Powell’s legislation, such techniques were only beginning to emerge, and MPs opposing the bill were keen to encourage further research into PGD. Today, PGD is commonplace, and frequently used to avoid implantation of embryos with genetic disorders such as Down Syndrome. For Powell and others who supported the bill, the experimentation that led to such techniques was unethical. Twenty-first century opponents of IVF see the techniques themselves as unethical, arguing that they discount the value of children with disabilities.
The minority in the British House of Commons who took a stand against Powell’s bill did so both to protect IVF, but also because they saw the Unborn Children (Protection) Act as a stealth assault on abortion rights. Michael Meacher made the connection between IVF and abortion rights explicit in his speech opposing the bill at Second Reading, arguing that it would:
establish the principle that the foetus should be protected from interference from the moment of fertilisation. We all take different views about that—and perhaps it is right—but it would call into question post-coital forms of contraception and, whether deliberately or not, the whole question of abortion. The explanatory memorandum states: The provisions of the Bill do not involve any issue concerning abortion, surrogacy or legitimacy. Many people will wonder just how disingenuous that is as a declaration. For many people, that in itself might be the reason for rejecting the Bill.
IVF has become a much more common procedure since the Powell bill failed to make it into law. In 2017, the last year for which statistics are available, there were nearly 300,000 IVF and egg freezing procedures carried out in the US, and more than 75,000 cycles carried out across the UK. Opposition to IVF can no longer be viewed principally as a Trojan horse to outlaw abortion. Rather, the debate over Coney Barrett’s views on IVF underscores the links between the “positive” and “negative” sides of family planning. Both IVF and abortion privilege a woman’s right to determine whether and how to form a family. Both are threatened by ideologies that privilege the rights of the unborn and the supposed sanctity of nature above a woman’s right to choose.
Laura Beers is Professor of British History at American University in Washington, DC. She is the author, most recently, of Red Ellen: The Life of Ellen Wilkinson, Socialist, Feminist, Internationalist (Harvard, 2016). Her current research focuses on the politics of infertility in Modern Britain. She tweets @Fiery_Particle.