Kim Chandler / AP
The exterior of the Alabama Supreme Court building in Montgomery, Ala., is shown Tuesday, Feb. 20, 2024.
Friday, March 1, 2024 | 2 a.m.
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When the U.S. Supreme Court issued its 2022 decision in the Dobbs case, overturning Roe v. Wade and 50 years of accompanying precedent, women’s rights advocates warned the nation that the assault on women’s privacy and bodily autonomy was far from over.
Fast forward to a few weeks ago, when the Alabama Supreme Court declared that frozen embryos are full-fledged human beings entitled to all the rights and privileges of any other person. As a result, the parents of a 3-day-old, six-celled blastocyst that is accidentally damaged or destroyed can seek significant wrongful death damages. The government would have similar powers to pursue civil action or criminal charges such as child neglect, endangerment or even murder against parents, health care providers or embryo storage facilities.
As if to underscore the seriousness of its decision, the Alabama court’s ruling said that “the ordinary meaning of ‘child’ includes children who have not yet been born,” and children are children “regardless of that child’s viability or stage of development.”
In a concurring ruling, Chief Justice Tom Parker went even further, adding that: “Human life cannot be wrongfully destroyed without incurring the wrath of a holy God,” and “Even before birth, all human beings have the image of God, and their lives cannot be destroyed without effacing his glory.” So much for the Founding Fathers’ advocacy for freedom of religion and the separation of church and state.
The ruling sent shock waves through the health care industry as in vitro fertilization (IVF) service providers now suddenly face the possibility of millions of dollars of lawsuits and manslaughter charges against doctors, nurses and clinicians doing nothing more than trying to help families conceive. Within hours of the ruling, Alabama’s largest provider of IVF services had paused operations, leaving families that had already invested tens of thousands of dollars and years of their lives into IVF with few options for conception or even reimbursement of their expenses.
After decades of arguing that American conservatives are “pro-life,” a conservative-majority court relying on conservative legal arguments and precedent established by a conservative U.S. Supreme Court is actively persecuting families and health care providers who want nothing more than to bring life into the world.
While the Alabama ruling does not directly affect the laws in other states, it does echo the views of conservative lawmakers and judges across the country and provides precedential language that can be used to argue in favor of similar laws in other states.
Moreover, laws that invoke language similar to the Alabama ruling are already being considered in other states with Republican legislative majorities. Georgia, Missouri and Arizona have already enacted fetal personhood laws, and lawmakers in at least 12 other states have introduced fetal personhood laws in their current legislative sessions.
Following the backlash to the court’s ruling in Alabama, Florida Republicans delayed action on their proposed “fetal personhood” bill but did not withdraw the bill from consideration, meaning the party is simply biding its time until the dust settles in Alabama.
Moving forward, couples who have struggled to conceive, including those rendered infertile by childhood diabetes or cancer treatments, must now also contend with health care providers who are afraid to help for fear of being sued or prosecuted. Even the parents themselves could face liability for knowingly creating embryos that are never implanted and become nonviable in the freezer.
While the exact number is not known, The U.S. Department of Health and Human Services and National Embryo Donation Center estimate that at least 600,000 embryos are frozen in the U.S. right now. Many of those embryos were never intended to be implanted in the first place, because couples commonly create multiple embryos at the same time with the plan that only the most viable and successful one or two will be implanted and carried to term.
The element of personal cruelty in these laws and court rulings also merits consideration. The fertility journey for many people is marbled with hopes that might be dashed, anxiety, trauma and personal triumphs and tragedy. It stretches the people involved to the emotional limit, and these laws savagely target these vulnerable people. We should be helping people on this emotionally fraught journey and supporting them. Instead, the GOP victimizes women and families by dictating to women what they can, can’t and should do with their own bodies.
Setting aside civil and criminal liability, the Alabama ruling requires that even decades-old nonviable embryos must remain frozen and stored in perpetuity, creating incalculable costs for IVF service providers and their patients.
Given how dystopian today’s GOP has become, an outrageous next step might be having courts simply mandate that the embryos be implanted, forcibly impregnating women and requiring them to carry to term under threat of criminal prosecution.
Last month’s decision in Alabama wasn’t an outlier in the post-Roe world. The court did nothing but impose conservative Christian dogma on the entire population of Alabama. Even when not couched in outright religious zealotry, these laws are abominations that force a 10-year-old rape victim to choose between carrying to term or traveling out of state to seek an abortion, and force a woman to travel out of state to terminate a pregnancy that was never viable to begin with but left the mother fighting for her life.
On Thursday, after weeks of backlash, Republicans in the Alabama House of Representatives tried to distance themselves from their own ideology, passing a bill giving IVF service providers civil and criminal immunity for services directly related to fertility and conception. Unfortunately, Alabama Senate Republicans blocked a similar bill from moving forward, making the prospects of a timely solution uncertain.
In short, the GOP has no desire to abandon its war on women. Conservative extremists have already captured much of the judiciary, and it is only their own incompetence and infighting that has kept them from exercising effective control of the U.S. House of Representatives. Should they recapture the White House and the U.S. Senate, it almost certainly would mean the end of women’s and families’ rights to privacy and autonomy in their reproductive choices.
