Rooted in the 1872 law and a state constitutional provision making it Alabama’s public policy to recognize and support “the sanctity of unborn life and the rights of unborn children, including the right to life,” the ruling allowed three couples to sue a fertility center over the accidental destruction of embryos they had stored there. While those couples deserve some recompense, the court proceeded with what can only be called callous obliviousness to the wider implications of its decision.
Whether created naturally or through IVF, many embryos do not result in a successful pregnancy due to chromosomal or other abnormalities. So IVF doctors recommend creating multiple embryos in the lab, which inevitably means that, whatever the outcome of any given attempt to have a child, one or more embryos could be left. Some are used to try for another child, some are donated to medical research, some are saved indefinitely, and some are discarded.
The Alabama ruling has made IVF practitioners fear that any mistake handling, implanting or storing embryos could make them, in the eyes of the law, as legally exposed as a reckless driver who hits a child. At least three Alabama clinics paused operations after the state Supreme Court ruling.
Those clinics remain on pause, even as Alabama’s GOP politicians backpedal. Also in damage control mode are national Republicans. A newly released memo from their Senate campaign committee advised candidates to “state your support for IVF and fertility-related services as blessings for those seeking to have children” and to “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.” That is: adopt the rational, humane approach 85 percent of Americans favor — and that personally benefited former GOP vice president Mike Pence and his wife, Karen, among other Republican luminaries. Alas for former South Carolina governor Nikki Haley, she did not get the memo in time. Having initially voiced some sympathy for the notion that an embryo is a baby, she quickly pivoted to supporting IVF.
An overwhelming national consensus is rapidly making an impact. The episode is much less positive, however, in what it demonstrates about the insistence of some on the religious right to roll back progress — technological, social and legal — on matters related to reproduction and reproductive freedom. You would have thought they had learned from the disastrous election results for Republicans that followed the U.S. Supreme Court’s overturning of Roe v. Wade in 2022, as women — and men — across the country voted to keep abortion legal in their states.
To be sure, the interaction of its constitution and the 1872 law, plus the freak accident that resulted in destruction of a particular lab’s embryos, could make Alabama’s case unique. The mind-set behind the court’s ruling, however, is still widely held.
State lawmakers in Louisiana, Missouri and Texas have — unsuccessfully so far — tried to curb birth control methods such as the “Plan B” emergency pill taken after sex and intrauterine devices (IUDs). These methods may prevent the implantation of an embryo into the uterine wall — unacceptable to some of those who consider embryos to be people. Aside from Alabama, at least 10 other states already have laws or policies that broadly define personhood as beginning at fertilization, according to advocacy group Pregnancy Justice. Antiabortion activists are already touting the Alabama ruling as “precedent” to argue in other states that “unborn life must be protected at every stage.”
Even if Alabama corrects its Supreme Court’s error, the fact that it happened at all is a sobering moment for anyone who thought the post-Roe push to roll back reproductive freedom had ended, or would be narrowly focused. A stubborn minority is intent on curbing rights and freedoms that a majority of Americans, across the ideological spectrum, have come to rely on. And in some places, this minority has power.
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