A Democratic bill to protect in vitro fertilization (IVF) died on Thursday in the U.S. Senate, when all but two Republicans voted against it, leaving it short of the votes it needed to advance.

The IVF bill is Democrats’ latest effort to shore up access to reproductive health care as the Supreme Court’s nearly two-year-old decision in Dobbs v. Jackson Women’s Health Organization, which ended the federal right to abortion, continues to reverberate around the country. That decision did not directly affect IVF, in which an egg is fertilized in a lab — a process that often creates more embryos than a patient intends to use. It did, however, open the door to efforts to restrict it. 

Earlier this year, the Alabama Supreme Court ruled that frozen embryos had the same rights as children, highlighting how the anti-abortion movement’s push to establish fetal personhood could impact other forms of health care such as assisted reproductive technology. The Southern Baptist Convention this week adopted a resolution opposing IVF — it is the largest Protestant denomination in the country and its 13 million members are a core part of the Republican Party’s evangelical base. Americans overall overwhelmingly approve of IVF, though, and Alabama’s GOP-controlled state legislature quickly passed legislation that provides legal immunity for IVF providers, but many abortion-rights advocates and health care providers said the law’s protections were not strong enough to ensure IVF access. 

“It is only because of IVF that I get to be embarrassingly proud when I hang my 6-year-old’s drawings on my Senate office walls, or that I get to be tackled in bed every Mother’s Day by my 9-year-old, who runs into my room bearing the biggest of hugs and the sweetest of cards, so excuse me if I find it offensive when a bunch of politicians who never spent a day in med school hint that those of us who needed the help of IVF to become moms should be behind bars,” Democratic Sen. Tammy Duckworth of Illinois said before the vote. Duckworth introduced the bill. She is a military veteran and the first U.S. senator to give birth while in office. She used IVF ahead of having both of her children. 

Ever since the Supreme Court’s Dobbs ruling in June 2022, which ended nearly 50 years of the federal right to an abortion, Democrats and abortion-rights advocates have warned that with the protections of Roe v. Wade gone, the anti-abortion movement and conservative courts would begin chipping away at other types of reproductive health care such as contraception and assisted reproductive technology, even as they remain broadly popular. 

Republican leaders have attempted to downplay such risks. Undercutting the GOP’s national message are state-level lawmakers who have attempted to curb access to contraception and anti-abortion leaders within the party’s ranks calling for IVF restrictions. Conservative Justice Clarence Thomas wrote in a concurring opinion in the Dobbs case that the Supreme Court should revisit, among other rulings, a case it decided in the 1960s that legalized contraception for married couples.

Senate Republicans on Wednesday attempted to head off Thursday’s vote with one of their own on a competing IVF bill introduced by Sens. Ted Cruz of Texas and Katie Britt of Alabama. Britt has become the GOP face of efforts related to women’s health in the Senate; she delivered the Republican response to President Joe Biden’s State of the Union address in March. 

The Britt-Cruz IVF bill would prohibit states that receive federal Medicaid funding from banning IVF but did not address potential legal liability faced by IVF providers or patients for discarding unused embryos. Sen. Patty Murray of Washington, who co-sponsored the Democrats’ bill along with Duckworth and Sen. Cory Booker of New Jersey, said that the Republican bill was a “PR tool, plain and simple” and noted that IVF in Alabama had been imperiled by a court ruling, not a legislative ban. Republicans tried to pass the Britt-Cruz legislation using an expedited process known as unanimous consent — Murray lodged the only objection needed to block it 

“It’s just another way for Republicans to pretend they are not the extremists that they keep proving they are. Meanwhile there are bills some Republicans are pushing for, right now, that would enshrine as a matter of law that life begins at conception and that discarding unused embryos is essentially murder,” Murray said on the Senate floor. 

“The stone cold reality is that you cannot protect IVF and champion fetal personhood,” she added. 

Since before Roe, establishing fetal personhood has been an end goal of the anti-abortion movement. It would redefine who qualifies as a human or person under already-existing laws to include unborn fetuses and even embryos or zygotes — abortions or discarding frozen embryos could therefore be considered a crime, like homicide. Two-thirds of Americans oppose classifying frozen embryos as people, according to an Axios-Ipsos poll taken earlier this year. 

Britt said Democrats’ failure to support the GOP’s bill and instead attempting to pass their own, which has been blocked by Republicans in the past, was a “scare tactic” to preserve the issue as a motivator in the November elections, echoing complaints from many of her colleagues. Republican Sen. Bill Cassidy of Louisiana, a physician, complained that the process had been rushed and insisted that his party wanted to protect IVF.

The Democrats’ bill, which had by Thursday gained a total of 48 co-sponsors, failed in a 48-to-47 vote, with Republican Sens. Susan Collins of Maine and Lisa Murkowski of Alaska joining Democrats. Nearly all Senate legislation must clear a 60-vote threshold to move forward. The upper chamber currently has 47 Democrats, 49 Republicans and four political independents who typically align with the Democrats, giving them a de facto 51-49 majority. 

The failed Democratic bill would have established a statutory right to IVF; authorized individuals serving in the U.S. military to freeze embryos ahead of deployment or after an injury and improved military access more generally; required employer-sponsored health insurance plans to cover fertility treatments; and required health insurance plans that participate in the Federal Employees Health Benefit Program to cover other assisted reproductive technologies, along with IVF.

Roughly a third of the Senate is up for reelection in November. Abortion rights are expected to feature prominently in key races in Arizona, Nevada and Ohio that will determine which party controls the upper chamber. It is unlikely that either party will pick up enough seats to have the filibuster-proof majority required to pass legislation related to reproductive health care. 

Former President Donald Trump, the de facto Republican nominee, has struggled to explain his positions on abortion and contraception. He nominated three justices to the Supreme Court who cemented the conservative majority that overturned Roe v. Wade, but has said he does not favor a federal abortion ban enacted as legislation. The president has purview over other departments and agencies that could be used to severely restrict abortion access, including but not limited to the Department of Justice and the Food and Drug Administration (FDA). Trump has also said abortion regulation should be left up to the states, more than a dozen of which have banned abortion at all points in pregnancy in the two years since Dobbs. 

President Joe Biden and Vice President Kamala Harris, meanwhile, see the issue of abortion as one that favors their ticket as well as Democrats more broadly. Biden’s Justice Department has challenged state abortion bans, in one case citing a law that requires most emergency rooms to provide treatment. The Supreme Court is expected to rule in that case in the coming days. Biden’s FDA also eased access to the abortion drug mifepristone — a move that was challenged in a case that the Supreme Court dismissed on Thursday due to lack of standing