An Alabama court ruling that says frozen embryos created by in vitro fertilization are considered children — and could trigger wrongful death laws if they are destroyed — is scrambling the fraught politics around abortion in the heat of an election year.
The decision poses thorny questions for pro-life conservatives who promote the merits of parenthood and building families. Couples unable to have children spend thousands of dollars on in vitro treatment as their best option for parenthood besides adoption.
Former Vice President Mike Pence says IVF helped him expand his family and should be protected. Some state Republicans who imposed abortion restrictions after the Supreme Court overturned the national right to abortion stressed that new bans wouldn’t affect IVF procedures.
The University of Alabama at Birmingham health system and other clinics paused in vitro treatments this week out of fear of prosecution under the state Supreme Court ruling.
The tension around Alabama’s bombshell was on display as former South Carolina Gov. Nikki Haley, a Republican contender for president, tried to clear up earlier remarks in which she agreed that frozen embryos are unborn babies.
“I didn’t say that I agreed with the Alabama ruling. What the question that I was asked is, ‘Do I believe an embryo is a baby?’” she told CNN on Wednesday. “I do think that if you look in the definition, an embryo is considered an unborn baby. And so, yes, I believe from my stance that that is.”
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Yet Ms. Haley, who repeatedly stressed that the U.S. needs to find a consensus on abortion limits, said she doesn’t want the Alabama ruling to cause division and suggested parents should retain some rights.
“This is not the time where you divide people; you bring people together,” she said. “Our goal is to always do what the parents want with their embryo. It is theirs.”
Her caution reflects the potential backlash against Republican candidates if IVF treatments are threatened as part of the broader debate on abortion limits.
For now, the ruling applies only to Alabama. The decision stems from wrongful death lawsuits brought by couples whose frozen embryos were destroyed in an accident.
The ruling is having a chilling effect on IVF facilities that fear wrongful death lawsuits if embryos end up destroyed.
“The Wrongful Death of a Minor Act applies to all unborn children, regardless of their location,” the justices wrote in an opinion this week.
The opinion said that includes “unborn children who are located outside of a biological uterus at the time they are killed.”
That triggered fears that IVF treatments would be off the table for Alabama parents desperate to have children.
Some Republican governors from the South are distancing themselves from the ruling, saying they haven’t looked into the particulars of the decision and they support IVF as an option for couples.
“You have a lot of people out there in this country that they wouldn’t have children if it weren’t for that,” Georgia Gov. Brian Kemp said Thursday at the Politico Governors Summit in the District of Columbia.
Tennessee Gov. Bill Lee said that “generally I am supportive of IVF” but added that he doesn’t know “the details of that case and ruling.”
New Hampshire Gov. Chris Sununu, a Republican and anti-Trump voice, was more forceful in his summit comments about the ruling, deeming it “scary.”
“You want to make sure those services are accessible,” he said.
Polling by KAConsulting, a firm run by former Trump adviser Kellyanne Conway, found an overwhelming share of Americans support IVF procedures.
“Even within staunchly conservative circles, including pro-life advocates (with 78% support, 39% strongly supporting) and Evangelicals (with 83% support, 44% strongly supporting), there is significant and unwavering support for the IVF procedure,” her December report said.
“Candidates for Congress — and certainly those already serving there — can bank significant political currency by advocating for increased access to and availability of contraception and fertility treatments,” Ms. Conway’s firm said.
President Biden’s campaign on Thursday pounced on the University of Alabama at Birmingham’s move to stop treatments.
“So-called pro-life Republicans are preventing loving couples from growing their families,” the campaign said.
Mr. Biden also condemned the ruling in a formal White House statement. He said it is a direct result of the U.S. Supreme Court’s 2022 decision to let states regulate abortion and is a blueprint for what’s to come if former President Donald Trump returns to the White House.
“Today, in 2024 in America, women are being turned away from emergency rooms and forced to travel hundreds of miles for health care, while doctors fear prosecution for providing an abortion,” Mr. Biden said. “And now, a court in Alabama put access to some fertility treatments at risk for families who are desperately trying to get pregnant. The disregard for women’s ability to make these decisions for themselves and their families is outrageous and unacceptable.”
Former Secretary of State Hillary Clinton, who lost the 2016 election to Mr. Trump, wrote on X: “They came for abortion first. Now it’s IVF and next it’ll be birth control.”
“The extreme right won’t stop trying to exert government control over our most sacred personal decisions until we codify reproductive freedom as a human right,” she said.
Democrats fumed over the decision to overturn Roe v. Wade but saw it as a valuable political tool. They used it to drive voters to the ballot box in 2022 and plan to do so again in November. Voters in several states have used ballot measures to protect abortion rights.
Mr. Trump has sought a middle ground on abortion, signaling he supports limits but wants to negotiate reasonable legislation.
The New York Times reported that he privately supports a ban on abortion after 16 weeks with certain exceptions, though the Trump campaign blasted the report as “fake news.”
Mr. Trump and other Republican leaders have tried to shift the heat back on Democrats who seem to approve of abortion throughout a pregnancy, dubbing them extreme, though the IVF ruling in Alabama is giving Mr. Biden and his allies more fuel for attacks.
“If Donald Trump is elected, there is no question that he will impose his extreme anti-freedom agenda on the entire country,” Biden campaign manager Julie Chavez Rodriguez said.
Katie Daniel of Susan B. Anthony Pro-Life America said people are missing the point of the ruling, which doesn’t ban IVF but speaks to how it’s handled.
“The Alabama court recognized what is obvious and a scientific fact — life begins at conception. That does not mean fertility treatment is prohibited. Rather it means fertility treatments need not carelessly or intentionally destroy the new life created,” she said.
• Tom Howell Jr. can be reached at thowell@washingtontimes.com.
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