The Alabama IVF Ban Conversation Is Missing the Bigger Point

Two weeks ago, the Alabama Supreme Court determined that, for the purposes of its Wrongful Death of a Minor statute, frozen embryos are children. The move has largely been covered as an “IVF ban”—but the potential consequences reach far beyond IVF.

On a new episode of Amicus, Dahlia Lithwick spoke to Georgetown University professor Dr. Michele Goodwin about how the Alabama decision fits into a much broader movement attempting to enshrine the notion of fetal personhood into law. Goodwin is the author of six books, including the award-winning Policing The Womb: Invisible Women and the Criminalization of Motherhood. This conversation has been edited and condensed for clarity.

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Dahlia Lithwick: Our eyes are on Alabama now. But you have been watching Alabama for years. What did you see there that foreshadowed this IVF decision?

Michele Goodwin: I interviewed prosecutors in Alabama long before Dobbs. I did on-the-ground work in Alabama over 15 years ago. And what was already happening in Alabama was a child endangerment statute had been enacted, not intended to be targeted at pregnant women or people with a uterus, but that’s how the law was being implemented by prosecutors.

It was a law that was attempting to discourage men from turning their homes into meth labs, which then could catch flame, could blow up and then harm everybody inside, including children. So it was a means to try to discourage that. It was intended for children, meaning people who were 4 and 5 and 6 and 10 and 12. The legislation’s co-sponsors later said that they were not intending that it be used against pregnant women. And I think there’s so many aspects for us to unpack in terms of how that came about.

Women going in for prenatal care—meaning women who are not trying to have abortions or seek abortions, but were trying to be as responsible as possible to get the prenatal care that they needed—were asked, as we all are, about our social histories. For example, do you exercise every week? Do you drink beer? Do you drink wine? And these women were being honest about their experiences.

And what they did not know is that prosecutors were basically using this as a trap—encouraging medical providers, doctors, and nurses to contact them or to be responsive to their calls when they wanted to find out if a woman had used methamphetamine during pregnancy, or Valium or anything else, and to turn over medical information these women viewed as confidential, as private between themselves and their doctors. These women were taking extraordinary plea deals—10, 15, 20 years—when confronted with these heavy-handed prosecutions.

When I think of you, I think of conversations I’ve had with you, and with Dorothy Roberts, who I know hugely influences your work, with all the people who were saying for years: “This isn’t just about abortion. This is not just about IVF.”

Now we are having this incredibly myopic IVF conversation. And let’s be clear, it’s not an IVF ban in Alabama. Alabama didn’t ban IVF. The fact that clinics are not providing services is a different matter, but I think we just got dragged down this road of Mike Pence saying that his family used IVF, so IVF is OK. And we’re having a conversation that, yet again, as it did with abortion, hives off this question of assisted reproductive technologies. But that’s not actually the conversation we should be having. Right?

That’s right. I’ve said for many years that rights is a plural, and yet the reproductive rights movement for decades basically had its eye on abortion and not on what would be all of the other spokes on the wheel that would convey rights. And in terms of Alabama, now this is all about IVF rather than the broader satellite of so many issues: contraception, sex education, employment, economics.

Of course, women are thinking about these matters—and what Black women understood, intergenerationally, are these questions about family and reproduction. Laws measuring and surveilling their reproduction are not new. Thomas Jefferson famously wrote about how, on his plantation, he preferred for there to be women and girls rather than men because he said they were turning a profit every year or two.

And Thomas Jefferson was not talking about, “Oh, Black girls just pick cotton at a more feverish rate than do Black boys and Black men.” Thomas Jefferson was conveying to other politicians and other planters in writing, which you can find at the Monticello website, as a means to show that forced reproduction imposed on Black women and girls was profitable. It would render profit to people who would follow this advice that he was giving. We’re failing to understand and piece together this history that is telling us so much about the lengths to which people will go in order to exert power and capitalize off of the reproduction—or lack of power associated with reproduction—of the most vulnerable in our society.

So we are sitting in the midst of a centurieslong regime in which power and capital and wealth are transferred from white men to white men, patrilineally, while oppression, policing, and criminality are in fact transferred matrilineally. There’s a straight line between what you just said and one of the things you say every single time we speak in public, which is that you cannot have this conversation without seeing that the lawmakers who are fetishizing childbirth and babies are telling on themselves, because the maternal mortality rates are so high. This has nothing to do with protecting life with good pregnancy, or with health outcomes. Because, particularly in the South, if you cared about life, the maternal death rates would not correlate to all of these restrictions.

That’s absolutely right, and we see that so much of this has been about power and control, which I know is hard for people to grapple with. In 2016, the Supreme Court acknowledged in Whole Woman’s Health v. Hellerstedt that a woman is 14 times more likely to die carrying a pregnancy to term than by having an abortion. The World Health Organization has said that an abortion is as safe as a penicillin shot.

This kind of inconsistency, this kind of confusion, really relates to misogyny and it relates to power. This is how we could have a eugenics movement in the United States that would ban poor white people from being able to even become parents. In 1927, the United States Supreme Court determined in Buck v. Bell that Carrie Buck, a poor 16-year-old white girl who had been raped and had a child out of wedlock, should not be able to have any children in the future—and in fact, no one else like Carrie should be able to have children either, such that Virginia and more than 30 states enacted these eugenics laws where there were literally poor white people, who are 12, 13, 14 years old, who were coercively sterilized. And that became such a prominent campaign that the Nazis in Germany latched on to it and came to the United States and studied: How is the United States implementing this eugenics program? And then they took the law back and, almost verbatim, implemented it in Germany. And there is a point in time in the 1930s where we have American lawmakers that are saying, “The Germans are beating us at our own game, we have to speed it up.”

And there were “fitter family” contests in the United States, at state fairs, there were buildings that were built for the fitter families so that people could come and show how blond their hair is, how blue the eye is, who the babies are. And what stitches all of these things together is a sense of power and control.

I wrote a piece earlier this week saying this is not just a conversation about IVF, not just about the police, it’s also a conversation about families and who gets to decide what your family looks like and the ways in which we use not just the law of adoption and the law of removing children from the home. This is Dorothy Roberts’ work. All of that law is used to reallocate children from one set of families to another. And as you said, if you were Black or brown, you knew that long before this IVF case came along it was about who is allowed to make decisions about your children.

All of that is so deeply infected by religion, and it always has been. And the Alabama decision is so theological and so unabashedly religion-based—and, I would say, not Judeo-Christian grand themes, but full-on white, Christian, American ideas about religion.

Justices Sotomayor and Kagan have been ringing an alarm bell about the weaponization of the First Amendment, saying so quite directly on cases that involve reproductive health care. What’s interesting about this is that we’re at a time in which the Supreme Court has said that originalism matters. We must look to the past in order to be guided in the present. And if one were to take that seriously, one should see that there is a very thick divide between religion and law, and that church and state should not blend together. And so we see the selectivity of determining what are the kind of religious inferences that should or could embed in law.

This lean into religion makes no room for anything outside of a kind of white-Christian-nationalism type of approach. I’ll close with this. In the Constitution, religious minorities are protected from the tyranny of the state. That really is the purpose behind the Bill of Rights—to protect individuals from the tyranny of the state. It’s not intended to place a thumb on the scale such that people can be harmed in the name of religion. That is exactly what the people who colonized the United States were fleeing from. And here it is in 2024, and it’s far more visibly implanted in American law than perhaps ever before, at least in recent decades and centuries. And so it’s alarming—but I would say that this won’t be the end of it.