Not just abortion: IVF ruling next phase in the right’s war on reproductive freedom

U.S. Senate Majority Leader Chuck Schumer (D-NY) speaks during a news conference at the U.S. Capitol on protections for access to in vitro fertilization on February 27, 2024 in Washington, DC. (Photo by Anna Moneymaker/Getty Images)

By Isabel Soisson

February 27, 2024

Nearly two years after the US Supreme Court overturned Roe v. Wade, another court is using that ruling to go after one of the anti-abortion right’s other targets: in vitro fertilization (IVF). 

The Alabama Supreme Court ruled last week that frozen embryos are children and that those who destroy them can be held liable for wrongful death, an unprecedented decision that could have national consequences for IVF treatment, the most successful form of infertility treatment which is responsible for about 2% of all births in the US.

In a 7-1 ruling that has been widely criticized, the justices—all of whom are Republicans— found that frozen embryos in test tubes are children and they are therefore covered under the state’s Wrongful Death of a Minor law, which allows parents to sue for punitive damages when their child dies. 

Although the court’s decision does not prohibit IVF, this is the first known case in which a US court has said that frozen embryos are human beings and some of Alabama’s largest IVF clinics have already ceased operations amid fears of potential legal action. 

The ruling has created a firestorm of controversy and ignited fears of further restrictions on IVF. Faced with a mounting backlash, some Republicans have raced to distance themselves from the ruling they made possible, while others embraced the court’s decision. 

What to Know About IVF

IVF involves collecting a woman’s eggs and a man’s sperm and combining the two in a laboratory dish. The resulting embryos are then grown in special incubators, and one or more of them are then transferred into the woman’s uterus. After about 10 days, the woman will take a blood pregnancy test to determine whether the process was successful and if she’s pregnant.

Only about a quarter of the fertilized eggs in a given process result in an embryo. 

This is why “embryo loss is a big part of the journey” of the IVF process, according to Judith Daar, a specialist in reproductive health law and dean at Chase College of Law at Northern Kentucky University. She says “it’s a byproduct of IVF.”

Embryo loss is the death of an embryo at any stage of its development. About two-thirds of embryos created during in vitro fertilization (IVF) inexplicably stop growing in the incubators, something that scientists are only recently starting to wrap their minds around. Getting rid of those non-viable embryos is simply part of the IVF process

“So if the embryo loss is now associated with civil or criminal penalties, it’s understandable that providers would not want to move forward,” Daar said. 

What the Lawsuit Was About

The Alabama ruling stems from two lawsuits filed by three sets of parents who underwent IVF to have children, but then decided to have the remaining embryos frozen.

These parents allege that in Dec. 2020, a patient at the Mobile, Alabama hospital where the embryos were stored walked into the fertility clinic through an “unsecured doorway,” and removed several embryos from the cryogenic nursery. Due to the low temperatures the embryos were stored in, the patient’s hand was “freeze-burned,” causing them to drop the embryos on the floor, destroying them. 

The parents went on to sue the clinic for wrongful death. A trial court initially dismissed their claims after they found that the cryopreserved, in vitro embryos involved in the case did not fit within the definition of a “person” or a “child,” but the state Supreme Court overturned that ruling.

Republicans Race to Distance Themselves From Their Record

Amid a public backlash to the Alabama Supreme Court’s ruling, Republicans have tried  to distance themselves from the ruling, tripping over themselves to express support for IVF. 

Former President Donald Trump, the likely 2024 Republican presidential nominee, came out in support of IVF and sought to avoid being associated with  the Alabama ruling, even though he appointed three of the US Supreme Court Justices who struck down Roe v. Wade, paving the path for the IVF ruling.

“We want to make it easier for mothers and fathers to have babies, not harder!” Trump said on his Truth Social platform, while simultaneously calling on the court to reverse the decision.

Despite Trump’s attempts to distance himself from the ruling, the Alabama court directly cited the Dobbs decision—in which the US Supreme Court overturned Roe—in its IVF ruling, stating that it has the authority to rule in this way because of the Supreme Court’s decision in 2022. 

President Joe Biden responded to the Alabama ruling last week, calling the result “outrageous and unacceptable.”

“The disregard for women’s ability to make these decisions for themselves and their families is outrageous and unacceptable,” he said in a statement. “Make no mistake: this is a direct result of the overturning of Roe v. Wade.”

Planned Parenthood Votes Executive Director Jenny Lawson issued a statement in response to Trump’s supposed support of IVF as well, saying that the former president “will say anything to get re-elected.” 

“He has repeatedly lied and flip-flopped about his views on reproductive freedom,” she said. “Trump, and Republicans across the country, saw the swift and immediate backlash to their hypocrisy — and now he is running scared. He may try to pander to the American people who are rightfully outraged, but his policies and rhetoric are fully to blame for this dangerous ruling.” 

The National Republican Senatorial Committee also issued a memo three days after the Alabama ruling, stating that candidates must “clearly and concisely reject efforts by the government to restrict IVF,” causing GOP lawmakers and candidates to express support of IVF after their initial silence.

“Publicly oppose any efforts to restrict access to IVF and other fertility treatments, framing such opposition as a defense of family values and individual freedom,” the memo read. 

But while they were issuing their statements in support of IVF, 125 House Republicans–including House Speaker Mike Johnson–have backed a “life at conception” bill without any IVF exception, meaning the treatment would not be protected and could be banned nationwide. 

The “Life at Conception Act,” uses a similar argument as the Alabama Supreme Court, declaring that life begins from the moment of conception. The bill states that the term “human being” includes “all stages of life, including the moment of fertilization, cloning, or other moment at which an individual member of the human species comes into being.” 

According to the Pew Research Center, huge majorities of US adults not only support fertility treatments, but almost every demographic believes fertility treatments should be covered by health insurance.

How the Alabama Ruling Could Become a Big Problem

While the Alabama ruling does not explicitly ban IVF—and could soon be preempted by state legislators who appear willing to pass IVF protections—it’s raised concerns among reproductive rights advocates that anti-choice groups and legislators will use it as a roadmap to target fertility treatments and reproductive rights in other states. 

It’s already happening in Florida. Liberty Counsel, a religious nonprofit, said last week that it’s using the Alabama ruling as a precedent to argue a proposed state constitutional amendment aiming to protect abortion rights will take away “a protected right to life for the unborn.”

“Every human life begins as an embryo, and now the Alabama Supreme Court has upheld the decision of its citizenry that every unborn life should be protected, no matter their stage or location,” Liberty Counsel Founder and Chairman Mat Staver said in a statement.

Planned Parenthood President and CEO Alexis McGill Johnson referenced this Florida development during an appearance on MSNBC. She also said that the key now is voting politicians that support this kind of legislation out of office.

“We cannot accept living in a world where our fundamental freedoms continue to be chipped away by religious zealots who care nothing about the families and communities that they’re setting laws for,” she said. 

Blurring the Lines Between Church and State

While the Alabama ruling has raised alarms over threats to IVF and fertility treatment, it’s also led to concern of the growing influence of the Christian far-right over American laws and policies.

In issuing his ruling, Alabama Supreme Court Chief Justice Tom Parker not only invoked legal precedent and the Constitution when explaining the IVF ruling, he also invoked God

“Human life cannot be wrongfully destroyed without incurring the wrath of a holy God,” he wrote in a concurring opinion. “Even before birth, all human beings have the image of God, and their lives cannot be destroyed without effacing his glory.” 

Since the repeal of Roe, Republicans have repeatedly sought to pass a nationwide abortion ban and to restrict access to abortion care. 

The US Supreme Court is also set to hear a case in March that could threaten the availability of the abortion medication mifepristone, which along with another drug, misoprostol, is approved through 10 weeks of pregnancy and is used in more than half of abortions nationwide.

A far-right conservative Christian group, the Alliance Defending Freedom, is seeking to revoke the FDA’s 2000 approval of mifepristone, or at minimum, severely restrict access to it. If the court opts to restrict or ban access to the medication, it would dramatically restrict access to abortion, even in states where it remains legal. 

Conservatives have targeted other areas of family planning and family life as well. 

A number of politicians, including House Speaker Mike Johnson, have turned their attention to restricting “no-fault divorce,” or, a mutual split where neither party takes the blame for a marriage’s dissolution. 

In a 2016 sermon, Johnson claimed that no-fault divorce turned the United States into a “completely amoral society.”

Human rights advocates claim that no-fault divorce, which was first legalized 50 years ago, is vital to gender equality and addresses issues like marital abuse. Legal experts also assert that no-fault divorce is a “necessity,” as well as a “common-sense legal path” that reduces “unnecessary” burdens on both courts and couples. 

The Heritage Foundation, a right-wing think-tank with enormous influence over Republican lawmakers, has also been explicit about its opposition to birth control and recreational sex. 

The group has also crafted a nearly 900-page blueprint—Project 2025—that lays out in detail how they intend to install right-wing loyalists across federal agencies to exploit the power of the federal government to attack abortion access, potentially reverse the FDA’s approval of all abortion medication, and even allow emergency rooms to refuse to perform life-saving abortions.

  • Isabel Soisson

    Isabel Soisson is a multimedia journalist who has worked at WPMT FOX43 TV in Harrisburg, along with serving various roles at CNBC, NBC News, Philadelphia Magazine, and Philadelphia Style Magazine.

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