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Alabama’s highest court last week ruled that embryos are children, and destroying them could constitute wrongful death of a minor. One dissenting justice wrote that the ruling “almost certainly ends the creation of frozen embryos through in vitro fertilization (IVF) in Alabama.” So far, two clinics in the state have paused IVF treatment, citing legal risks to their patients and physicians.
The state Supreme Court’s ruling raises questions around whether all IVF embryos can be considered children and might have to be transferred to the uterus — even though not all embryos produced in the IVF process are viable and could result in miscarriages.
Reproductive rights advocates said this decision will make already costly infertility treatments more expensive and difficult to access. The ruling has also left conservative politicians scrambling to react to the policy, which is not in line with public opinion on IVF and that some GOP analysts have warned could alienate more moderate or swing voters.
SIGNALS
Ruling could increase wrongful death suits against clinics and those who freeze embryos
If applied consistently, the Alabama court’s ruling “would fundamentally expand the reach of wrongful death statutes, with serious and unanticipated consequences,” law professor John Culhane argued in Slate. Courts in other states have allowed wrongful death claims in cases when a fetus was “viable,” but have never permitted a claim in the case of a destroyed frozen embryo, until now. Clinics and people who freeze their embryos “should be worried about suits brought on behalf of these embryos,” Culhane wrote. One lawyer and IVF mother told the Montgomery Advertiser that she was worried about the ruling’s implications for couples who create embryos and then divorce — specifically whether a man could have legally obtained embryos birthed by a surrogate and then sue his ex-wife for financial support.
GOP grapples with how to thread the needle on IVF rights
Alabama’s ruling is “another hot potato” for Republicans in an election year, one GOP strategist told Politico, which reported that candidates want to avoid talking about reproductive rights-related issues as the party tries to appease suburban women and other voters who remain unconvinced about abortion bans — and those who oppose abortion but support IVF. Former Trump adviser Kellyanne Conway has warned Republicans against limiting IVF and, in fact, is advising congressional candidates and lawmakers to advocate for expanded access to fertility treatments, according to her team’s memo obtained by Politico’s Playbook.
Some Republicans previously took pains to assure voters that post-Roe abortion bans would not affect IVF, and prominent GOP figures including former Vice President Mike Pence have talked about their families’ personal experiences using the treatment. But some Republicans have backed the court’s decision, inducing Alabama Sen. Tommy Tuberville, who told Semafor that the justices were “one hundred percent” correct in their ruling. GOP presidential candidates will have to also field the question: Are embryos babies? NikkiHaley, for one, says yes.
Ruling indicates a tilt toward theocracy, reproductive rights advocates warn
In his concurring opinion, the Alabama Supreme Court’s chief justice, Tom Parker, invoked “the wrath of God,” the Book of Genesis, and 16th- and 17th-century theologians to justify considering embryos as children, The New York Times reported. Conservative legal groups and anti-abortion advocates have long hailed Parker for his religiously-guided legal opinions, the Times reported, as reproductive rights activists warned against the tilt to theocracy.
“Control of women’s bodies is the endgame,” The New York Times Opinion columnist Charles M. Blow argued. “To those advancing these ideas, the will of God counts more than the will of the American people,” he wrote. Alabama’s court appears to have ignored the First Amendment and veered into theocratic ideology, Washington Post columnist Ruth Marcus wrote. The danger now, she argued, is that the state could “raise and expand the definition of unborn personhood, to go after birth control methods and reproductive technologies that involve fertilized eggs.”