Commentary Law and Policy

Personhood Amendments Would Hurt Families Who Want Children

Keiko Zoll

The amendments in Colorado and North Dakota giving legal rights to fetuses would leave people seeking in vitro fertilization in the dust.

Read more of our articles on “personhood” measures here.

Next week, voters in Colorado and North Dakota will take to the polls to vote on amendments that would give legal rights to zygotes, embryos, and fetuses, also known as “personhood” laws. Measure 1 in North Dakota seeks to recognize and protect the “inalienable right to life of every human being at any stage of development”; meanwhile, Colorado’s Amendment 67 asks voters to add “unborn human beings” to the state’s criminal code. Though Personhood USA, which is backing Amendment 67, may define “personhood” as the “cultural and legal recognition of the equal and unalienable rights of human beings,” make no mistake: The personhood movement is an attempt to undermine the legality of reproductive choice in America. This doesn’t just put abortion in danger; it also leaves some of the people wanting children the most—the infertility community—in the dust.

My own journey to motherhood was a textbook case of in vitro fertilization (IVF). Five years ago, I was diagnosed with premature ovarian failure, a sort of “end of the line” infertility diagnosis. In order to get pregnant, my doctor told us, I had a single choice: IVF with donor eggs, as my own were virtually nonexistent at the age of 26. While I grieved the loss of having a child with my own genes, I found hope and healing in the possibility of experiencing pregnancy and birth. Without IVF, we wouldn’t have the family we have right now.

I still have the grainy black-and-white photograph, taken just before my embryo transfer, of our two three-day-old, ten-cell blastocysts. I often wonder which of those two nearly transparent spheres became the charming, talkative toddler I now chase after.

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Even though I know that my son and one of those two balls of cells are the same, however, at no point when I look at that photo do I see a family portrait, much less a person. At that stage of human development, they were merely dividing tissue to me: They had no names, no genders, no sentience. But proponents of the personhood movement, who would legally define life as beginning at conception, evidently see a completely different picture. And it’s one that could make it much more difficult, if not impossible, for the as many as 7.4 million American women with infertility to create a family of their choice by seeking the treatments they need.

Here’s a basic primer of how IVF works: A woman’s ovaries are stimulated to produce multiple eggs. She may be the prospective parent, an egg donor, or even a gestational carrier who both donates her eggs and carries the pregnancy. Doctors then retrieve the eggs and fertilize them in the lab with the prospective father’s sperm from a provided sample. Three to five days after fertilization, medical professionals transfer one to three tiny embryos into the recipient uterus. Any excess embryos—on average, there are about 15—are often frozen and kept in cryopreserved storage until patients use them or discard them.

If personhood amendments were to pass, doctors would presumably have to treat all those embryos, or even the fertilized eggs, as if they had human rights. This, care providers point out, has no basis in medical fact—and it could severely hamper their ability to do their jobs safely and effectively.

“Among the many, many problems with these so-called personhood measures is they simply do not in any way reflect scientific reality,” Sean Tipton, chief advocacy and policy officer for the American Society for Reproductive Medicine (ASRM), told Rewire. “For physicians providing infertility care, the disconnect between the legal language and actual medicine is very dangerous. The reality is that most fertilized eggs will not develop into babies.”

Tipton fears that Amendment 67 and Measure 1, among other personhood measures, would place a question of potential murder on physicians trying to give their patients the best care possible. About those extra embryos, for example, he wondered, “Will doctors be forced to transfer them into their female patients anyway? Do they provide the best care for their patient, or do they risk facing a homicide charge?”

When it comes to the matters of how many embryos to transfer at once, there is no “one size fits all” recommendation. However, current ASRM guidelines call for the use of elective single embryo transfer (eSET) whenever possible in most favorable conditions, such as if it is the patient’s first IVF cycle or the embryos are of good quality. For most women younger than 37, ASRM recommends that doctors transfer a maximum of two blastocysts at once; for patients older than 38, it recommends no more than three. ASRM and the Society for Assisted Reproductive Technology (SART) specifically set up these guidelines to reduce the number of potentially dangerous multiple births resulting from IVF, including twins, triplets, quads, and higher-order multiples.

In our case, our egg donor—with whom my husband and I are close friends—provided us with 20 eggs then fertilized with my husband’s sperm. Six of those developed into embryos. My doctor transferred two embryos into my uterus; one implanted. Currently, we have four high-grade embryos “on ice”—and no hard-and-fast decisions yet on what to do with them.

Had personhood been in effect at the time of my IVF cycle, however, I wouldn’t have had the option to transfer only two embryos. Our donor would have had to understand that any of the extras couldn’t legally be discarded. We, as prospective parents, would be left with only two options: Donate the remaining embryos to another couple trying to conceive, or transfer them all to my uterus.

The first option, explains New Hampshire reproductive and family lawyer Catherine Tucker, could dissuade known donors from trying to give an altruistic gift to a close friend. “Your known donor might be willing to donate only to you and not to strangers,” Tucker noted. “So [she] might refuse to donate to you simply because she’s not comfortable with her genetic material going to other prospective parents in the event you cannot use all the embryos yourself.”

With our donor, after careful consideration, discussion, and legal negotiation, we collectively decided that any excess embryos would be ours, and ours alone, to use for future cycles, discard, or donate to scientific study as we saw fit—but not to another recipient couple. Our friend made her generous offer to be an egg donor for us, and for no other third parties. Even in cases where the donor is open to the idea of embryos going elsewhere, though, finding other recipients would be a logistical nightmare, especially with no way to guarantee any excess embryos at all.

On the other hand, transferring all of the embryos could put patients’ safety at risk. Assuming my same 50 percent implantation rate, for example, if I had transferred all six embryos, I could have had a triplet pregnancy—and that’s outside of the risk of any of those embryos splitting into multiples of their own. These types of high-order pregnancies put the woman and the fetuses at risk for serious complications, including preeclampsia, gestational diabetes, premature birth, miscarriage, and even maternal death. This is to say nothing of the costs of raising an unexpected additional child, which can be an immense burden on infertility patients who have already spent thousands of dollars on their treatments.

Personhood laws could also cause a number of other legal ambiguities for those involved in the IVF process. Barbara Collura, executive director for RESOLVE: The National Infertility Association, pointed out to Rewire that the vague language of the proposed amendments generates myriad potential gray areas that voters likely haven’t considered.

“What about the infertility patient scheduled for her IVF procedure on November 5?” she pointed out. For that patient, Collura noted, it would be unclear as to whether she had a right to refuse any of her embryos, or if she must cancel her treatment entirely—which would still leave any fertilized eggs retrieved and created before the ballot vote in legal limbo.

Collura also brought up the issue of unused embryos awaiting possible transfer. She raised the questions, “If Amendment 67 and Measure 1 pass on November 4, what will happen to embryos that are currently frozen and in storage in those states? Will infertility patients be able to cross state lines now with these so-called ‘pre-born people?’” After all, if embryos do not survive the trip, their transporters could be held responsible.

Tucker, too, noted that such an action might leave individuals liable to prosecution. “Under personhood laws, IVF physicians and lab personnel who handle the embryos could face criminal punishment should anything happen to these embryos,” she noted in an email to Rewire.

As a result of potential ramifications like these, personhood laws would have devastating effects for reproductive facilities. Reproductive endocrinologists in North Dakota have warned that Measure 1 would effectively shut down the sole fertility clinic in the state, rendering them unable to treat their patients. Amendment 67 would also either shutter Colorado fertility clinics entirely or severely limit their doctors’ abilities to practice recommended standards of care. Although Personhood USA claims that the amendments would not affect IVF, the very nature of the treatment means that some fertilized eggs or embryos are going to be discarded—which is blatantly at odds with the provisions outlined in personhood laws.

Ultimately, personhood initiatives could have a chilling effect on the entire practice of reproductive medicine. While the average person “might think that an IVF laboratory shutting down on account of a personhood law sounds far-fetched,” noted Tucker, “the bottom line is that personhood laws will end the ability of prospective parents to form their families with the help of IVF, egg donation, and even gestational surrogacy.” When legal rights are granted to ten-cell balls of tissue, every aspect of the handling, care, diagnostics, and treatment of those embryos must be taken into consideration. Personhood rights would upend decades of improving standards of best practice.

Personhood proponents argue that they are “working to respect the God-given right to life” and “protecting every child by love and by law.” But for people like me in the infertility community—who want nothing more than to have children of our own—personhood would actually prevent us from having those children in the first place.

I’ll never forget what our friend said when she made her incredible offer to donate her eggs to me and my husband: “I think everyone who wants to have a family should be able to. If I can give you that chance, I want to help because you two deserve to be parents.” If personhood proponents had their way, we’d never have had that chance at all.

Analysis Politics

The 2016 Republican Platform Is Riddled With Conservative Abortion Myths

Ally Boguhn

Anti-choice activists and leaders have embraced the Republican platform, which relies on a series of falsehoods about reproductive health care.

Republicans voted to ratify their 2016 platform this week, codifying what many deem one of the most extreme platforms ever accepted by the party.

“Platforms are traditionally written by and for the party faithful and largely ignored by everyone else,” wrote the New York Times‘ editorial board Monday. “But this year, the Republicans are putting out an agenda that demands notice.”

“It is as though, rather than trying to reconcile Mr. Trump’s heretical views with conservative orthodoxy, the writers of the platform simply opted to go with the most extreme version of every position,” it continued. “Tailored to Mr. Trump’s impulsive bluster, this document lays bare just how much the G.O.P. is driven by a regressive, extremist inner core.”

Tucked away in the 66-page document accepted by Republicans as their official guide to “the Party’s principles and policies” are countless resolutions that seem to back up the Times‘ assertion that the platform is “the most extreme” ever put forth by the party, including: rolling back marriage equalitydeclaring pornography a “public health crisis”; and codifying the Hyde Amendment to permanently block federal funding for abortion.

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Anti-choice activists and leaders have embraced the platform, which the Susan B. Anthony List deemed the “Most Pro-life Platform Ever” in a press release upon the GOP’s Monday vote at the convention. “The Republican platform has always been strong when it comes to protecting unborn children, their mothers, and the conscience rights of pro-life Americans,” said the organization’s president, Marjorie Dannenfelser, in a statement. “The platform ratified today takes that stand from good to great.”  

Operation Rescue, an organization known for its radical tactics and links to violence, similarly declared the platform a “victory,” noting its inclusion of so-called personhood language, which could ban abortion and many forms of contraception. “We are celebrating today on the streets of Cleveland. We got everything we have asked for in the party platform,” said Troy Newman, president of Operation Rescue, in a statement posted to the group’s website.

But what stands out most in the Republicans’ document is the series of falsehoods and myths relied upon to push their conservative agenda. Here are just a few of the most egregious pieces of misinformation about abortion to be found within the pages of the 2016 platform:

Myth #1: Planned Parenthood Profits From Fetal Tissue Donations

Featured in multiple sections of the Republican platform is the tired and repeatedly debunked claim that Planned Parenthood profits from fetal tissue donations. In the subsection on “protecting human life,” the platform says:

We oppose the use of public funds to perform or promote abortion or to fund organizations, like Planned Parenthood, so long as they provide or refer for elective abortions or sell fetal body parts rather than provide healthcare. We urge all states and Congress to make it a crime to acquire, transfer, or sell fetal tissues from elective abortions for research, and we call on Congress to enact a ban on any sale of fetal body parts. In the meantime, we call on Congress to ban the practice of misleading women on so-called fetal harvesting consent forms, a fact revealed by a 2015 investigation. We will not fund or subsidize healthcare that includes abortion coverage.

Later in the document, under a section titled “Preserving Medicare and Medicaid,” the platform again asserts that abortion providers are selling “the body parts of aborted children”—presumably again referring to the controversy surrounding Planned Parenthood:

We respect the states’ authority and flexibility to exclude abortion providers from federal programs such as Medicaid and other healthcare and family planning programs so long as they continue to perform or refer for elective abortions or sell the body parts of aborted children.

The platform appears to reference the widely discredited videos produced by anti-choice organization Center for Medical Progress (CMP) as part of its smear campaign against Planned Parenthood. The videos were deceptively edited, as Rewire has extensively reported. CMP’s leader David Daleiden is currently under federal indictment for tampering with government documents in connection with obtaining the footage. Republicans have nonetheless steadfastly clung to the group’s claims in an effort to block access to reproductive health care.

Since CMP began releasing its videos last year, 13 state and three congressional inquiries into allegations based on the videos have turned up no evidence of wrongdoing on behalf of Planned Parenthood.

Dawn Laguens, executive vice president of Planned Parenthood Action Fund—which has endorsed Hillary Clinton—called the Republicans’ inclusion of CMP’s allegation in their platform “despicable” in a statement to the Huffington Post. “This isn’t just an attack on Planned Parenthood health centers,” said Laguens. “It’s an attack on the millions of patients who rely on Planned Parenthood each year for basic health care. It’s an attack on the brave doctors and nurses who have been facing down violent rhetoric and threats just to provide people with cancer screenings, birth control, and well-woman exams.”

Myth #2: The Supreme Court Struck Down “Commonsense” Laws About “Basic Health and Safety” in Whole Woman’s Health v. Hellerstedt

In the section focusing on the party’s opposition to abortion, the GOP’s platform also reaffirms their commitment to targeted regulation of abortion providers (TRAP) laws. According to the platform:

We salute the many states that now protect women and girls through laws requiring informed consent, parental consent, waiting periods, and clinic regulation. We condemn the Supreme Court’s activist decision in Whole Woman’s Health v. Hellerstedt striking down commonsense Texas laws providing for basic health and safety standards in abortion clinics.

The idea that TRAP laws, such as those struck down by the recent Supreme Court decision in Whole Woman’s Health, are solely for protecting women and keeping them safe is just as common among conservatives as it is false. However, as Rewire explained when Paul Ryan agreed with a nearly identical claim last week about Texas’ clinic regulations, “the provisions of the law in question were not about keeping anybody safe”:

As Justice Stephen Breyer noted in the opinion declaring them unconstitutional, “When directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.”

All the provisions actually did, according to Breyer on behalf of the Court majority, was put “a substantial obstacle in the path of women seeking a previability abortion,” and “constitute an undue burden on abortion access.”

Myth #3: 20-Week Abortion Bans Are Justified By “Current Medical Research” Suggesting That Is When a Fetus Can Feel Pain

The platform went on to point to Republicans’ Pain-Capable Unborn Child Protection Act, a piece of anti-choice legislation already passed in several states that, if approved in Congress, would create a federal ban on abortion after 20 weeks based on junk science claiming fetuses can feel pain at that point in pregnancy:

Over a dozen states have passed Pain-Capable Unborn Child Protection Acts prohibiting abortion after twenty weeks, the point at which current medical research shows that unborn babies can feel excruciating pain during abortions, and we call on Congress to enact the federal version.

Major medical groups and experts, however, agree that a fetus has not developed to the point where it can feel pain until the third trimester. According to a 2013 letter from the American Congress of Obstetricians and Gynecologists, “A rigorous 2005 scientific review of evidence published in the Journal of the American Medical Association (JAMA) concluded that fetal perception of pain is unlikely before the third trimester,” which begins around the 28th week of pregnancy. A 2010 review of the scientific evidence on the issue conducted by the British Royal College of Obstetricians and Gynaecologists similarly found “that the fetus cannot experience pain in any sense prior” to 24 weeks’ gestation.

Doctors who testify otherwise often have a history of anti-choice activism. For example, a letter read aloud during a debate over West Virginia’s ultimately failed 20-week abortion ban was drafted by Dr. Byron Calhoun, who was caught lying about the number of abortion-related complications he saw in Charleston.

Myth #4: Abortion “Endangers the Health and Well-being of Women”

In an apparent effort to criticize the Affordable Care Act for promoting “the notion of abortion as healthcare,” the platform baselessly claimed that abortion “endangers the health and well-being” of those who receive care:

Through Obamacare, the current Administration has promoted the notion of abortion as healthcare. We, however, affirm the dignity of women by protecting the sanctity of human life. Numerous studies have shown that abortion endangers the health and well-being of women, and we stand firmly against it.

Scientific evidence overwhelmingly supports the conclusion that abortion is safe. Research shows that a first-trimester abortion carries less than 0.05 percent risk of major complications, according to the Guttmacher Institute, and “pose[s] virtually no long-term risk of problems such as infertility, ectopic pregnancy, spontaneous abortion (miscarriage) or birth defect, and little or no risk of preterm or low-birth-weight deliveries.”

There is similarly no evidence to back up the GOP’s claim that abortion endangers the well-being of women. A 2008 study from the American Psychological Association’s Task Force on Mental Health and Abortion, an expansive analysis on current research regarding the issue, found that while those who have an abortion may experience a variety of feelings, “no evidence sufficient to support the claim that an observed association between abortion history and mental health was caused by the abortion per se, as opposed to other factors.”

As is the case for many of the anti-abortion myths perpetuated within the platform, many of the so-called experts who claim there is a link between abortion and mental illness are discredited anti-choice activists.

Myth #5: Mifepristone, a Drug Used for Medical Abortions, Is “Dangerous”

Both anti-choice activists and conservative Republicans have been vocal opponents of the Food and Drug Administration (FDA’s) March update to the regulations for mifepristone, a drug also known as Mifeprex and RU-486 that is used in medication abortions. However, in this year’s platform, the GOP goes a step further to claim that both the drug and its general approval by the FDA are “dangerous”:

We believe the FDA’s approval of Mifeprex, a dangerous abortifacient formerly known as RU-486, threatens women’s health, as does the agency’s endorsement of over-the-counter sales of powerful contraceptives without a physician’s recommendation. We support cutting federal and state funding for entities that endanger women’s health by performing abortions in a manner inconsistent with federal or state law.

Studies, however, have overwhelmingly found mifepristone to be safe. In fact, the Association of Reproductive Health Professionals says mifepristone “is safer than acetaminophen,” aspirin, and Viagra. When the FDA conducted a 2011 post-market study of those who have used the drug since it was approved by the agency, they found that more than 1.5 million women in the U.S. had used it to end a pregnancy, only 2,200 of whom had experienced an “adverse event” after.

The platform also appears to reference the FDA’s approval of making emergency contraception such as Plan B available over the counter, claiming that it too is a threat to women’s health. However, studies show that emergency contraception is safe and effective at preventing pregnancy. According to the World Health Organization, side effects are “uncommon and generally mild.”

News Abortion

Iowa GOP Legislator: Ending Legal Abortion ‘Impossible’ Without ‘Personhood’ Laws

Teddy Wilson

GOP-backed "personhood" laws have been an unmitigated failure. Voters in state after state have rejected by wide margins personhood ballot initiatives, and personhood bills have failed to gain traction in many legislatures.

An Iowa Republican plans to introduce a measure defining life as beginning at conception in response to the U.S. Supreme Court’s ruling striking down an anti-choice Texas law, which has limited states’ ability to restrict abortion care access.

State Sen. Jason Schultz (R-Schleswig) told IowaWatch that the U.S. Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt proves that the anti-choice movement’s attack on abortion rights is not working.

“The Supreme Court decision reinforced that incrementally ending abortion is impossible,” Schultz said. “You either have it or you don’t.”

So-called personhood laws seek to classify fertilized eggs, zygotes, embryos, and fetuses as people, and to grant them full legal protection under the U.S. Constitution.

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GOP-backed “personhood” laws have been an unmitigated failure. Voters in state after state have rejected by wide margins personhood ballot initiatives, and personhood bills have failed to gain traction in many legislatures.

Personhood bills were introduced this year by Republican lawmakers in Alabama, Colorado, Maryland, Mississippi, Missouri, and Rhode Island.

Rachel Lopez, a spokeswoman for Planned Parenthood of the Heartland, told IowaWatch that personhood measures are routinely introduced in Iowa but have failed to gain traction in the GOP-dominated legislature.

“Although we have not yet seen the details of this impending effort, we are confident that it also will fail to advance,” Lopez said. “Personhood bills are a waste of both time and taxpayer dollars, as they have failed time and again in Iowa and other states.”

Iowa lawmakers this year introduced SJR 2001, a joint resolution proposing an amendment to the state constitution specifying that the document does not secure or protect a fundamental right to abortion care.

SJR 2001 was referred to the senate rules and administration committee, but never received a hearing or a vote.

Schultz, who was elected to the state senate in 2014 after serving in the house, has sponsored or co-sponsored several anti-choice bills while in the state legislature, including personhood measures.

SF 478, sponsored by Schultz during the 2015 legislative session, would have defined “person” when referring to the victim of a murder, to mean “an individual human being, without regard to age of development, from the moment of conception, when a zygote is formed, until natural death.”

Mark Kende, director of Drake University’s Constitutional Law Center, told IowaWatch that Schultz’s proposal would not survive in the courts.

“He can try to pass that legislation but it certainly wouldn’t trump the federal Constitution,” Kende said. “Even if that language got into the state constitution it can’t defy three Supreme Court decisions in the last 40 years.”

Gov. Terry Branstad (R) told IowaWatch that he could not support Schultz’s proposal.

“I’m pro-life and I want to do what I can to encourage things that can protect the lives of unborn children,” Branstad said. “Yet I also recognize that we have to live with the restrictions that have been placed on the states by the courts.”

Branstad signed many of the state’s laws restricting abortion access that came up during the latter part of his first term as governor.