Abortion bans: Alabama’s assault on IVF is even worse than it sounds.
The Supreme Court’s 2022 decision overturning Roe v. Wade immediately diminished the quality of health care provided to pregnant patients in states that ban abortion. Suddenly, obstetricians could no longer adhere to basic standards of care, and were instead forced by law to provide inferior—and often life-threatening—medical treatment to patients. Friday’s shock decision from the Alabama Supreme Court declaring that embryos are legally “people” will have a similarly devastating impact on the standard of care afforded to women struggling with infertility. The decision takes dead aim at IVF as it’s currently practiced, subjecting providers to ruinous damages (at best) and criminal prosecution (at worst). IVF clinics simply cannot operate under the draconian new constraints imposed by the court unless they adopt new, experimental techniques that are vastly more onerous and painful for patients. Judges are once again playing doctor, to the extreme detriment of women trying to build families.
Friday’s ruling involves an Alabama law called the Wrongful Death of a Minor Act, though its implications stretch far beyond this one statute. The act allows the parent of a deceased child to collect punitive damages against a party who causes “the death of a minor child” through negligence. Here, the plaintiffs—who already conceived several children through IVF—accused a fertility center of violating the act by failing to secure their unused embryos. They alleged that a patient accessed the embryos without authorization, dropping and “killing” them. The plaintiffs claimed that the fertility center is liable under the act because their embryos qualified as “children.”
AdvertisementBy a 7–2 vote, the Alabama Supreme Court agreed. The majority declared that the “natural, ordinary, commonly understood meaning” of the word childincludes embryos (which the opinion dubbed “extrauterine children”). Incredibly, the majority said this was true when the Wrongful Death of a Minor Act was passed in 1872. That’s because, according to the majority, state lawmakers of the 1870s believed that the “unborn” qualified as full legal “persons” no matter their “physical location”—that is, inside a “biological uterus” or a “cryogenic nursery.”
Advertisement Advertisement AdvertisementThis holding on its own has terrifying implications for IVF in Alabama. It means that a medical professional who inadvertently damages or destroys a microscopic embryo has maimed or killed a legal person and is on the hook for punitive damages that could run into the millions. Clinics simply cannot bear this crushing liability. Any accidental damage to an embryo, and even a failed thawing or transfer, could trigger a calamitous wrongful death suit. And what about unused embryos? The Alabama Supreme Court’s decision suggests that if patients refuse to pay for their storage, the clinic must simply preserve them for free, forever, lest it get slapped with a suit. Yet another unthinkable cost that no clinic could bear.
AdvertisementBut the court’s reasoning went far beyond this one statute. The majority also cited a provision of the Alabama Constitution referred to as the Sanctity of Life Amendment, which “acknowledges, declares, and affirms that it is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate.” According to the majority, this amendment requires courts to interpret “the rights of the unborn child equally with the rights of born children.” In practice, that appears to mean that every state law involving “children” must be extended to embryos—including criminal laws, up to and including homicide. Does the destruction of an embryo, intentional or not, now constitute murder in Alabama? The majority ominously reserved this question for a future case.
Advertisement AdvertisementIn a concurrence, however, Chief Justice Tom Parker spelled out the implications. The people of Alabama, he declared, have adopted the “theologically based view” that “life cannot be wrongfully destroyed without incurring the wrath of a holy God.” (If the U.S. Supreme Court hadn’t demolished the establishment clause, this opinion would surely violate it.) As a result, Parker continued, the courts have an affirmative duty to protect “the unborn,” including embryos. Any law that “risks the deaths of these little people” is constitutionally suspect. Courts may not engage in the business of “carving out an exception for the people in this case, small as they were.” This reasoning, on its own terms, applies to criminal laws with the exact same force as civil laws. And it means, Parker added, that even if the Alabama Legislature wanted to legalize IVF as it’s currently practiced, the state constitution would prohibit it from doing so.
Advertisement AdvertisementNot to worry, Parker assured Alabamians: IVF can still go on. But courts, not legislators or medical professionals, must dictate how it is performed so they can ensure that it avoids “incurring the wrath of a holy God.” Parker, who has no medical degree, then laid out an alternative method of IVF that would, he alleged, comply with the Alabama Constitution (and God’s will, as interpreted by the chief justice).
Advertisement AdvertisementBefore diving into the gratuitous, anti-scientific cruelty of Parker’s method, it’s important to understand how IVF is actually practiced. Doctors retrieve eggs, then fertilize them with sperm. They create as many embryos as possible, then freeze them. The embryos are rated for quality. Higher-quality embryos are thawed and transferred into the uterus. Multiple embryos are often transferred during each cycle in the hopes that at least one will result in a live birth.
AdvertisementThis is the standard of care for IVF, and has been for decades. Barbara Collura, president of the National Infertility Association (known as RESOLVE), told me that the mainstream medical establishment universally agrees that this method is in “the best interest of the patient.” It has the highest likelihood of success and requires the least amount of pain.
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Read MoreBut according to Parker, this method is unconstitutional, because it does not sufficiently protect embryos from being “killed.” (Although the majority is subtler, that’s the clear implication of its opinion too.) So Parker laid out his alternative: Doctors must create just one embryo at a time. Each embryo, no matter how poor its quality, must be transferred. Only one embryo may be transferred at a time. If the cycle fails, the whole process must start all over again.
Advertisement AdvertisementParker noted that Italy enshrined a similarly restrictive approach into law in 2004. Curiously, though, he failed to note that the country overturned the law five years later because it was a miserable medical failure. It has never been widely practiced in the United States for the same reason. Collura told me that Parker’s approach would radically reduce the quality of Alabama patients’ treatment while increasing the cost exponentially. Why? IVF patients would have to accept the transfer of a single low-quality embryo that is certain to fail—and to do so one embryo at a time. Each transfer requires months’ worth of expensive medication, including injectable, both before and after the procedure. And each failed cycle requires the patient to start all over again. Most states (including Alabama) do not require insurance to cover IVF, and each cycle can cost up to $30,000. So Parker’s method would force patients—the ones who can afford it—to undergo doomed, single-embryo transfers, one by one. All out of respect for a clump of cells that cannot be seen with the naked eye.
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There is a direct link between this judicial revision of IVF and the new, inferior standards of care that abortion bans inflict on obstetricians. Doctors in states like Texas (and Alabama) can no longer terminate pregnancies when, in their view, they pose a significant threat to the patient’s health. Instead, doctors must wait until a failing pregnancy poses a clear risk to the patient’s life, as defined under narrow state law. They must stand by as their patient faces sepsis, hemorrhaging, and other medical horrors, waiting to act until their life is in indisputable jeopardy. When in doubt, doctors must await a court’s permission to perform a lifesaving abortion. Just as abortion bans compel obstetricians to value the hypothetical interests of a fetus over the needs of a real, live patient, Parker’s IVF regime would force fertility clinics to value the hypothetical interests of an embryo over a patient’s desire to receive appropriate treatment.
Advertisement Advertisement AdvertisementThis connection should be no surprise. The anti-abortion movement has long opposed IVF, seeing no moral distinction between the destruction of an embryo, a fetus, or a living child. Most Americans disagree with this view: IVF was entirely legal in every state until the Alabama Supreme Court’s decision. With that ruling, the dog has caught the car, and we have entered a new era of the post-Roe assault on reproductive rights, with judges openly limiting patients’ ability to undergo fertility treatment. As Collura told me, a decision like this was “inevitable” after Roe’s reversal, “given how the anti-choice movement views embryos. The attack of IVF was just on the back burner.” On Friday, to the detriment of untold thousands, it abruptly moved to the front.
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