Updated Feb 27, 2024 - Politics & Policy

Conservatives struggle to find coherent message on Alabama IVF ruling

Donald Trump speaks at the Conservative Political Action Conference (CPAC)

Donald Trump speaks CPAC on Feb. 24, in National Harbor, Maryland. Photo: Anna Moneymaker/Getty Images

Opponents of abortion rights are struggling to find a coherent message to address the blowback from an Alabama Supreme Court ruling determining that frozen embryos are children.

Why it matters: Reproductive health care was already shaping up to be a major theme in the 2024 elections, but the recent ruling adds access to fertility treatments to the already fraught national conversation around abortion.

State of play: The Alabama ruling raises pertinent legal questions about whether leftover embryos — a common occurrence in the in vitro fertilization process — can ever be disposed of, and if so, how.

  • Treating embryos as children also raises a myriad of questions about other issues, including taxation, child support and kidnapping.

The big picture: Some Alabama clinics have already halted IVF treatments in the wake of the ruling, and there are concerns that other states like Texas will soon have to address the issue.

  • Republicans in the House and Senate have sought to distance themselves from the ruling, saying they do not support IVF restrictions.

The other side: Democrats in Congress have seized the opportunity to attack Republicans.

  • The Democratic National Committee even launched billboards in battleground states tying former President Trump to the IVF ruling, NBC News reported.
  • "Republicans own what happened in Alabama," Senate Majority Leader Chuck Schumer (D-N.Y.) said at a press conference Tuesday.
  • Sen. Patty Murray (D-Wash.) said at the same press conference: "You cannot support IVF and support fetal personhood laws. They are fundamentally incompatible."

Zoom out: The issue has also attracted attention on the 2024 presidential campaign trail.

  • President Biden slammed the ruling "outrageous and unacceptable," adding that it was a "direct result of the overturning of Roe v. Wade."
  • Nikki Haley said she disagreed with the Alabama decision, but that she agreed that frozen embryos are babies.
  • Trump said he supported IVF and called on the Alabama legislature to act quickly to find a solution to preserve IVF in the state.

What they're saying: Lila Rose, the president of the anti-abortion rights group Live Action, told Axios Trump's response was "very disappointing" and "shows ignorance."

  • She said the American IVF industry is mired in ethical dilemmas and "riddled with abuses," and that even in European countries with more IVF regulations, the practice is "still problematic."
  • She argued that an ethical infertility treatment would be more along the lines of NaProTechnology to treat underlying conditions rather than "bringing life into existence in petri dishes."
  • "No one is promised a child," Rose said. "No matter how much money you pay, even with IVF."

Context: Kristin Parker, a senior associate at Reed Smith law firm, told Axios this month's ruling wasn't the first time that the Alabama Supreme Court ruled that a fetus is a child.

  • Its previous rulings applied to fetuses in the womb. The latest ruling is the first to apply to embryos in a hospital's cryogenic nursery, Parker noted.
  • A 2018 amendment to the Alabama constitution — supported by anti-abortion rights groups — enshrined language about the "rights of unborn children."
  • The Alabama Pro-Life coalition supported the amendment at the time but noted that the implications on IVF weren't part of the discussion, the group's president, Eric Johnston, told Axios.

Johnston added that he agreed with the recent Alabama IVF ruling and that "taking care of these embryos" was the central issue.

  • Leftover embryos could be preserved for later use by the parents, put up for adoption or stored until they "die a natural death," Johnston noted.
  • If an IVF clinic "negligently or wantonly causes the death of the embryo — which it would be a death because it is an organism — is that not actionable in some way?" Johnston asked.

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