Alabama Thinks It Has Solved Its IVF Crisis. Not Quite.

Alabama Gov. Kay Ivey signed a bill on Wednesday designed to restore IVF access following the state Supreme Court’s disastrous decision last month holding that embryos are legally “children.” Republican legislators rushed the measure through in the face of a nationwide outcry over the sudden halt in fertility services caused by the court’s shocking ruling. It is unclear, however, whether the new law will solve the problem the court created—or whether the court, which seems committed to embryonic personhood under the Alabama Constitution, will even uphold the measure in the first place.

On a new episode of Amicus, Dahlia Lithwick and Mark Joseph Stern discussed the stopgap legislation and the looming legal battle over its constitutionality. Their conversation has been condensed and edited for clarity.

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Dahlia Lithwick: Let’s talk about Alabama Legislature believing they solved the problem created by their state Supreme Court by enacting new legislation that hives off IVF and thus satisfies neither side. I think this just continued a roiling and fractious debate in which only one side can possibly be telling scientifically true facts.

Mark Joseph Stern: This new bill in Alabama sailed through the Legislature, and as you said, it creates special immunity from liability for IVF providers and patients. Remember, the Alabama Supreme Court said that embryos are children under the state’s wrongful death statute, opening up clinics and perhaps even patients to massive punitive damages for the destruction of an embryo. This bill shuts that down in theory by offering a super sweeping shield from liability that attaches to IVF clinics, and that even though there are all these fetal personhood statutes that say life begins at the moment of fertilization, none of that applies to IVF. The bill was designed to let IVF clinics resume treatment as quickly as possible by telling them, “Don’t worry, you’re not going to get hit with millions and millions of dollars in punitive damages for every embryo that’s damaged or destroyed.”

Will it work?

IVF experts and medical groups are pretty skeptical that it will. The American Society for Reproductive Medicine said that “without a more permanent and thorough fix, it will be difficult to recruit new physicians to the state” because they’ll still be afraid to practice there. Barbara Collura, president of the National Infertility Association, noted that there’s “more work to be done” because the new legislation “does not address the underlying issue of the status of embryos as part of the IVF process.” That’s clearly true. I also think it’s important to note that the fight isn’t over: Even as the Legislature was passing this by lopsided margins, leading anti-abortion groups were gearing up for battle and expressed staunch, vigorous opposition to the new bill—a bill which, as recently as a few weeks ago, Republicans were assuring us they would all support.

I think that’s really important. This is, again, saying the quiet parts loud. The bill is a sop to all the folks who wanted to overturn Roe v. Wade and are now saying, “Wait, IVF was never supposed to be implicated!” It carves out IVF so Alabama lawmakers can say, “Look, we protected IVF!” But as you say, that’s never going to be good enough for the embryonic personhood crowd.

The bill is frankly contradictory to the views and goals of the anti-abortion movement. The leading groups of the movement sent this letter to Gov. Ivey telling her to veto the legislation, which didn’t work—she signed it. But their letter claimed the law would “cause irreversible damage to the thousands of embryos, parents, and women in this state,” who “must resist an ideology that treats human beings as expendable commodities.” And it warns: “Any legislation on this issue must take into consideration the millions of human lives who face the fate of either being discarded or frozen indefinitely, violating the inherent dignity they possess by virtue of being human.”

Again, we’re talking about tiny little eight-cell things you can only see with a microscope. But the anti-abortion movement has been consistent on this. So have the architects of the legal movement to overturn Roe and entrench fetal personhood into law. Just a sampling: Carter Snead, an anti-abortion advocate and director of the Notre Dame Center for Ethics and Culture, said the law contradicts the Legislature’s stated commitment to “the intrinsic equal dignity of every human being regardless of age, size, location, condition of dependence, or social status,” calling it “a shocking error in judgment that will have catastrophic results.” Joshua Cradock, a lawyer who has written one of the most prominent law review articles proposing fetal personhood under the 14^th Amendment—basically, a constitutional ban on all abortions—also savaged the bill. He said it “erodes legal protections for human beings created through IVF.” Of course, Senate Republicans just blocked a bill that would have established federal protections in all 50 states for IVF.

It doesn’t sound like the fight is over.

There’s already another lawsuit against an IVF clinic that could tee up another decision at the Alabama Supreme Court. Republicans in Alabama are patting themselves on the back right now. But I think this is just the beginning of the battle.

One more thing: As you wrote when the decision came down, the Alabama Supreme Court’s position on fetal personhood wasn’t just rooted in their feelings. It was also rooted in the Alabama Constitution itself. So presumably the court could overturn any statute that restores IVF, including this one.

Absolutely. The majority specifically said that the state constitution’s “Sanctity of Life” amendment, which establishes fetal personhood, is “directly aimed at stopping courts from excluding ‘unborn life’ from legal protection” and grants a substantive right to embryos to receive full equal protection under the law. I think there’s a real possibility that this same majority could come back and say the new legislation runs afoul of the state constitution by granting absolute immunity to IVF clinics. It could rule that the Legislature is depriving both embryos and patients of the ability to vindicate the equality of these unborn lives, taking away a protection that previously existed. I mean, the majority said these were “weighty concerns” in the last ruling.

It’s not really a stretch to see the court acting on those “concerns” the next time around.

This was actually discussed during legislative debates. Look at state Rep. Terri Collins, a Republican who sponsored Alabama’s really draconian abortion ban, which has no exception for rape or incest, and a 99-year prison sentence for providers. Collins acknowledged that the new IVF bill might be unconstitutional under the “Sanctity of Life” amendment. But then she said the Legislature didn’t have to think about that right now, because “it’s very divisive” and “everybody has very strong opinions on when life begins.”

Well, yes, Rep. Collins, we all do have those views. But they really only become a problem when they are enshrined into law and used to deprive Americans of their basic ability to build families.