The Alabama Supreme Court handed down a first-of-its-kind ruling last week that said frozen embryos created from in vitro fertilization “are children” and should be protected as such under the law: a decision that ostensibly hands anti-abortion advocates a win, and uses language taken directly from the movement.
But prominent anti-abortion organizations have been hesitant to speak about it. Major national groups like Susan B. Anthony Pro-Life America and National Right to Life — both which have statements on their websites about protecting the “unborn” — normally are quick to put out statements when a court, both on the federal and state level, rules on an anti-abortion matter. That wasn’t the case this time around.
The National Right to Life did not respond to a request for comment. After this story published, SBA sent a statement saying that the ruling “does not mean fertility treatment is prohibited. Rather it means fertility treatments need not carelessly or intentionally destroy the new life created.”
“I think it presents a dilemma to deal with because it’s a bit more complicated,” said Eric Johnston, an attorney and president of the Alabama Pro-Life Coalition (SBA directed NOTUS to Johnston when initially reached for comment). The case itself, he added, doesn’t deal with the state’s near-total abortion ban and instead focuses on IVF, “so it’s not a topic that’s been widely discussed” by the movement nationally.
“It represents very difficult ethical, medical, legal, political issues,” he said.
The fight among conservatives and anti-abortion groups over IVF has been looming since the end of Roe v. Wade, as several states moved to implement laws banning abortion from conception, with limited exceptions. Experts say those could be interpreted to impact IVF since the process involves fertilizing many eggs outside of the body and freezing or discarding the ones that are not transferred back into a womb. While some Republicans have specifically sought to clarify these laws should not impact IVF, activists have been strident in saying the “pro-life” movement should work to protect IVF-created embryos as well.
Even on the campaign trail, top GOP candidates are deeply split. Nikki Haley said Wednesday that embryos were “babies” in her view, though she wanted to be “respectful and sensitive about it.” Donald Trump has recently floated a federal 16-week ban that many anti-abortion groups do not think goes far enough.
“Attacking IVF is a lot less popular,” said Kimberly Mutcherson, a professor of law at Rutgers specializing in assisted reproduction. “When you’re talking about abortion, you get to say, ‘This is about killing babies, this is about terrible people, you know, who don’t want to respect life.’ Whereas in the context of fertility care and IVF, the rhetoric is, ‘This is about making babies, this is about people who are willing to spend lots of money and lots of time in order to make babies.’”
Students for Life stands as somewhat of an outlier among its anti-abortion national counterparts. The group has said that IVF is a “hot topic … that affects the pro-life movement directly.” Kristi Hamrick, the group’s vice president of media and policy, said in a statement to NOTUS that the “Alabama Supreme Court is merely stating the logical conclusion as seen in the science of life, which is that a new human being begins at conception.”
“Whether all courts or all laws notice that obvious truth doesn’t change the facts, but we applaud the court for their common sense ruling,” Hamrick added, alluding to the potentially unique situation Alabama is in.
The Alabama Supreme Court’s majority opinion relies on the state’s Wrongful Death of a Minor Act, which allows parents to seek punitive damages when their child dies, along with a 2018 constitutional amendment that made it so that the state recognizes and protects the “sanctity” and “rights of unborn children.”
There is an “overwhelming consensus” in Alabama, Justice Jay Mitchell wrote in the opinion, “that an unborn child is just as much a ‘child’ under the law as he or she is a ‘child’ in everyday conversation.”
“Other states that don’t have that won’t have that same issue come up, so the pro-life community will be different from state-to-state on how they feel about it,” Johnston told NOTUS. In “states that have a 15-week law or six-week that prohibits abortion, in vitro is not going to be an issue for them because their recognition of life does not go that low.”
Fertility experts worry that the Alabama opinion could become an example for states that protect embryos and fertilized eggs via their near-total bans — such as the 16 states that the conservative Heritage Foundation says have “excellent” protections for “unborn children.” (Some state abortion bans contain clauses that specifically state that their restrictions do not apply to fertility treatments, others aren’t as clear.)
“I think the concern is that it will proliferate,” said Betsy Campbell, chief engagement officer of RESOLVE: The National Infertility Association. “The concern is that, you know, [states] will codify personhood and perhaps their goal is to outlaw IVF.”
Campbell said that fertility clinics in Alabama are likely in the process of “reevaluating their procedures in light of this new legal framework.” The University of Alabama at Birmingham health system said it’s paused all IVF procedures as it considers whether its health providers “could be prosecuted criminally or face punitive damages for following the standard of care for IVF treatments.”
Broader conservative groups who are not strictly anti-abortion — like Alliance Defending Freedom and the Family Research Council — have been publicly celebrating the Alabama ruling. Johnston said he believes the larger national anti-abortion groups will eventually come around.
“On the sanctity of life, the pro-life community generally believes a fertilized egg would be life, it would be entitled to protection. There’s just not been a lot of discussion about in vitro because it’s not been a big issue,” Johnston said. But ultimately, he later added, “my suspicion is most of them will say, ‘Well, it is life, it’s a fertilized egg, it will grow into a person.’”
This story has been updated with a statement from SBA.
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Oriana González is a reporter at NOTUS.