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(The Hill) — Alabama’s Supreme Court has ruled that frozen embryos are people, the first time a court has ever given rights and protections so early after conception.
The ruling is limited to Alabama, but it has far-reaching potential and seems poised to open a new front in the fight over reproductive rights in the country.
Alabama has one of the strictest abortion laws in the nation, and advocates and legal experts worry it could show a path forward for the “personhood” movement in other conservative states.
The White House on Tuesday condemned the decision as “exactly the type of chaos that we expected when the Supreme Court overturned Roe v. Wade and paved the way for politicians to dictate some of the most personal decisions families can make.”
Here’s what to know.
The ruling did not outlaw IVF
The Alabama Supreme Court’s decision found that embryos and fertilized eggs are considered children under the Alabama Wrongful Death of a Minor Act, even if they have not been implanted in a uterus.
“Unborn children are ‘children’ under the Act, without exception based on developmental stage, physical location, or any other ancillary characteristics,” Alabama Supreme Court Justice Jay Mitchell wrote for the majority.
Fertility experts said the new legal standard upends how in vitro fertilization (IVF) is practiced and left far more questions than answers. IVF in Alabama could become much more expensive and inaccessible.
But it is not illegal.
“The goal of IVF is to have a healthy pregnancy with a single baby, and that requires creating enough embryos [to] give the best chance of pregnancy,” said Betsy Campbell, chief engagement officer at RESOLVE: The National Infertility Association.
Campbell said there is no roadmap on how to proceed, but the ruling “definitely could make it impossible to perform IVF to the standard that has been honed over the last 40 years.”
In a concurring opinion that quoted heavily from the Bible, Chief Justice Tom Parker said IVF will look different but won’t end in Alabama.
Parker said it will be up to the courts to dictate how IVF can be performed in a way that won’t cause harm to unborn children and won’t incur the “wrath of an angry God.”
“Even before birth, all human beings have the image of God, and their lives cannot be destroyed without effacing his glory,” Parker wrote.
He suggested freezing embryos may no longer be allowed, and that doctors must create one embryo at a time and then implant it, no matter the quality.
At least one facility has already paused IVF treatment
The University of Alabama at Birmingham (UAB) health system — the largest in the state — said it is pausing all IVF treatments for fear of lawsuits and criminal prosecution.
“We are saddened that this will impact our patients’ attempt to have a baby through IVF, but we must evaluate the potential that our patients and our physicians could be prosecuted criminally or face punitive damages for following the standard of care for IVF treatments,” a spokesperson for the health system said.
Advocates said they have no answers for patients who may be wanting to start IVF, those who are midcycle or those with frozen embryos.
According to UAB, egg fertilization and embryo development is paused, but the process will continue up through egg retrieval.
During IVF, a patient self-administers hormone injections over about two to three weeks. An egg, or several eggs, is surgically removed from the ovary and fertilized within a laboratory environment. The fertilized egg, now considered an embryo, is then implanted into the uterus or frozen for later use.
Standard IVF practice is to also freeze any embryos that are not implanted right away. According to Johns Hopkins Medicine, embryos can be safely preserved for 10 years or longer.
In a brief filed prior to the decision, the Alabama Medical Association warned the court against creating an “enormous potential for civil liability” for fertility doctors.
Sean Tipton, chief advocacy and policy officer for the American Society for Reproductive Medicine (ASRM), said he expects more clinics to pause as lawyers try to figure out the full implications of the ruling.
“Modern fertility care will be unavailable to the people of Alabama, needlessly blocking them from building the families they want,” said ASRM President Paula Amato.
The ruling could boost the “fetal personhood” movement
According to the ruling, human life begins at fertilization, and unborn children are people under the state’s wrongful death laws.
Reproductive rights advocates have been concerned about access to IVF since the U.S. Supreme Court overturned Roe v. Wade and ended the constitutional right to an abortion.
Conservative states moved quickly to enact strict abortion bans from the moment of conception with limited exceptions, meaning the loss or discarding of embryos could be criminalized.
If Alabama law declares that unborn children deserve all the rights and protections of living children, other states may do the same. Abortion rights advocates said they have been afraid that such a ruling was the logical next step following the fall of Roe v. Wade.
“We’re likely to see conservative states and other conservative supreme courts adopting wholesale the same arguments that were made by the activists behind the decision in Alabama,” said Katie O’Connor, director of federal abortion policy at the National Women’s Law Center.
“Right now, we have a system where abortion is completely banned in 12 states. My fear is that this will be the case for IVF and other fertility care moving forward as well,” O’Connor said.
Lila Rose, founder of the anti-abortion group Live Action, called on other states and the federal government to follow suit.
“Laws that allow the homicide of children in the womb through abortion violence violate equal protection and are unconstitutional,” Rose said in a statement. “The Alabama Supreme Court decision should be applauded and used as a model of honest and prudential jurisprudence nationwide.”
There’s an effort to use the Alabama court’s standard in Florida
Liberty Counsel, a nonprofit evangelical Christian legal group, almost immediately filed a notice of supplemental authority with the Florida Supreme Court, arguing against a potential abortion ballot measure.
The potential amendment will take away “a protected right to life for the unborn,” the group argued.
“Every unborn life is a human being. Every human life begins as an embryo, and now the Alabama Supreme Court has upheld the decision of its citizenry that every unborn life should be protected, no matter their stage or location,” Liberty Counsel founder and Chair Mat Staver said in a statement.
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