S-5108-119
Read twice and referred to the Committee on Health, Education, Labor, and Pensions.
Sponsored by Tammy Duckworth (D-IL)
What it does
This bill would establish a federal statutory right to access assisted reproductive technology (ART), including IVF and intrauterine insemination (IUI), and would preempt state laws that restrict or impede that access. It would require most private health insurance plans, Medicaid, and Medicare to cover ART and IUI. It would also expand ART and fertility preservation services for active-duty military members and veterans, including coverage for spouses, partners, and gestational surrogates, and would mandate DoD fertility preservation procedures before combat deployment or hazardous assignments.
Who benefits
Individuals seeking IVF or IUI who live in states with restrictive laws — particularly those in states that have granted embryos legal personhood status. LGBTQ+ individuals and same-sex couples who may face state-law barriers to ART access. Single individuals seeking ART without an infertility diagnosis. Active-duty service members and veterans who need fertility preservation or treatment, including those injured in combat. Spouses, partners, and gestational surrogates of service members and veterans. Fertility clinics and ART providers who would gain federal protection from state-level restrictions. Health insurers operating in states without existing ART mandates. Pharmaceutical and device manufacturers supplying ART-related products. Lower-income individuals who would gain Medicaid coverage for ART for the first time.
Who is hurt
State governments whose existing or future ART regulations — including embryo-protective laws — would be preempted. Religious employers and insurers who object on conscience grounds to covering or facilitating ART, particularly procedures involving embryo creation and disposal. Health insurers and employer-sponsored plans that would face new mandatory coverage costs, which may be passed on to all policyholders through higher premiums. Taxpayers who would fund expanded Medicaid and Medicare ART coverage. States with surrogacy restrictions, whose laws would be overridden for veterans' care. Providers who decline to offer ART on religious or ethical grounds and could face civil suits. Competing fertility-related businesses in states where new federal standards displace existing state regulatory frameworks.
Supporters argue
Supporters argue that access to IVF is broadly popular — polling consistently shows 80%+ public support — and that state-level embryo personhood laws, such as the Alabama Supreme Court's 2024 ruling that frozen embryos are "children," have already caused fertility clinics to pause services, directly harming patients mid-treatment. They contend that the bill's Commerce Clause foundation is well-established under NFIB v. Sebelius (2012), which affirmed Congress's broad power to regulate existing commercial activity, and that the insurance coverage mandates follow the same framework as the ACA. They further argue that extending these protections to military families addresses a documented gap: service members who suffer combat injuries affecting fertility currently lack consistent, permanent access to ART through the VA and DoD.
Opponents argue
Opponents argue that the bill's sweeping preemption of state health and safety laws — including those that regulate embryo handling and disposition — raises serious Spending Clause and 10th Amendment concerns, as NFIB v. Sebelius (2012) established limits on federal coercion of states through funding conditions. They contend that the bill's use of ASMR guidelines as the legal standard for permissible state regulation effectively delegates federal lawmaking authority to a private medical society, a delegation that may not survive post-Loper Bright judicial scrutiny. They further argue that the mandatory insurance coverage provisions, applied without an infertility diagnosis requirement, could significantly raise premiums for all enrollees and that religious employers and insurers are given no conscience exemption, creating conflicts with RFRA protections recognized in Burwell v. Hobby Lobby (2014).
Constitutional context
The bill's preemption of state ART laws rests on the Commerce Clause (Art. I, §8, cl. 3), which NFIB v. Sebelius (2012) confirmed supports regulation of existing commercial activity. However, the mandatory insurance coverage provisions and Medicaid expansion requirements implicate the Spending Clause coercion limits also addressed in NFIB, and the absence of a religious conscience exemption creates potential conflicts with RFRA as applied in Burwell v. Hobby Lobby (2014). Post-Loper Bright (2024), courts will independently review HHS regulations implementing the bill's standards rather than deferring to agency interpretations.
Checks and balances
Congress would expand federal authority over state reproductive health regulation and private insurance markets; HHS, DoD, and VA gain rulemaking power to implement coverage standards; the Attorney General and private parties gain new civil enforcement rights against states; federal courts serve as the primary check through Commerce Clause, Spending Clause, RFRA, and major questions doctrine review.
Historical precedent
The ACA (2010) established the framework for federal mandates on private insurance coverage and Medicaid expansion, and NFIB v. Sebelius (2012) set the constitutional boundaries that would govern similar challenges to this bill's coverage and preemption provisions.