DemDaily: The New Reproductive Rights Battleground: IVF

February 23, 2024

Last Friday, the Alabama Supreme Court ruled that, under state law, frozen embryos created through in vitro fertilization are considered "children" -- with potentially devastating consequences for every American wishing to access reproductive services.

The ruling is another salvo in the nationwide battle over reproductive rights that has continued to rage in the courts, state legislatures, Congress, and the ballot box since the 2022 Dobbs v. Jackson ruling by the US Supreme Court striking down the constitutional right to abortion established in 1973 with Roe v. Wade.

In the wake of that decision, 14 states enacted total abortion bans, including Alabama, which has not only outlawed abortion but threatened to prosecute people who help women travel out of state to seek reproductive care.

The in vitro case involves three Alabama couples who lost frozen embryos during a 2020 accident at a Mobile storage facility. The couples filed a civil lawsuit against the fertility clinic and hospital for the wrongful death of a minor child, which was rejected by a lower court on the grounds that the embryos were not a legally defined person or child.

The all-Republican state Supreme Court, three of whom were appointed by former President Donald Trump, reversed the lower court decision, ruling that “extrauterine children” were protected by the state's "wrongful death" law.

The judges’ majority opinion referenced anti-abortion language added to the state constitution in 2018 stating that Alabama protects the “rights of the unborn child,” and an 1872 statute allowing parents to sue over the wrongful death of a minor.

“Unborn children are ‘children’ under the Act, without exception based on developmental stage, physical location, or any other ancillary characteristics,” wrote Justice Jay Mitchell in the majority opinion.

In a concurring opinion, Chief Justice Tom Parker cited Christian theology: “Even before birth, all human beings have the image of God, and their lives cannot be destroyed without effacing his glory.” Parker has previously asserted that US law should be rooted in the bible.

Reproductive medicine scientists blasted the decision as “medically and scientifically unfounded.”

The court did not address whether an embryo has constitutional rights and or whether medical workers who destroy embryos can be prosecuted for murder, adding to the confusion around the decision. Three IVF clinics in the state announced they were pausing services as they sort through the legal ramifications of the ruling.

In the interim, women and couples who have invested thousands of dollars and sometimes years of emotional and physical turmoil are left stranded in legal limbo.

"Today, in 2024 in America, women are being turned away from emergency rooms and forced to travel hundreds of miles for health care, while doctors fear prosecution for providing an abortion. And now, a court in Alabama put access to some fertility treatments at risk for families who are desperately trying to get pregnant. The disregard for women’s ability to make these decisions for themselves and their families is outrageous and unacceptable. Make no mistake: this is a direct result of the overturning of Roe v. Wade...The Vice President and I are fighting for your rights...for the freedom of women, for families, and for doctors...And we won’t stop until we restore the protections of Roe v. Wade in federal law for all women in every state."
- President Joe Biden

In the 2022 midterm elections, Americans rebuffed these threats to their personal freedoms, with 27% of voters ranking abortion as the most important issue in deciding their vote at the ballot box.

The Alabama in vitro case could drive further turnout for Democrats as a warning of what voters can expect if Republicans make gains in 2024, let alone take possession of the White House.

That reality has not escaped all Republicans -- or at least not all in conservative Alabama.

Republican State Senator Tim Melson, a medical doctor, said the in vitro ruling is an unintended consequence of the language added to the Alabama Constitution in 2018 which made it state policy to recognize the rights of the “unborn.”

Melson is introducing legislation that clarifies that a fertilized egg has legal protections under the statute only after it is implanted in the uterus.

The case is expected to inspire similar legal challenges in other states where anti-abortion activists have long campaigned to recognize fetuses as having the full legal rights of a "person."

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Kimberly Scott

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Sources: AP, CNN, New York Times, BBC, Reuters

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