The ruling by the Alabama Supreme Court — that embryos are human beings — has the potential to jeopardize I.V.F. clinics all over the country, not just Alabama. The next victim is likely to be birth control in America. The only way to possibly reverse course is to elect those who will pick Democratic and Republican judges who stand where most Americans are today on reproductive rights, and not limited to ancient interpretations.
The Alabama Supreme Court ruled that “unborn children are ‘children’… without exception based on developmental stage, physical location, or any other ancillary characteristics.” The state’s highest court’s ruling had the effect of putting fertility clinics in the state ‘on hold’ and leaving many childless couples in limbo.
The Alabama Attorney General Steve Marshall has promised not to prosecute in vitro fertilization families or providers. He will be under powerful pressure to change his policy or risk the wrath of the same ultra-conservative voters who elected the state’s highest court justices, and also voted for the very “personhood” amendment that made this ruling possible. Is Marshall stopping that civil litigation from going forward that the Supreme Court just ruled on?
Alabama Senator Tommy Tuberville gave a much-maligned, confusing rambling take on the ruling saying that the main thing to do is have more kids, later admitting he hadn’t read the ruling. “I think the big thing is right now, you protect — you go back to the situation and try to work it out to where it’s best for everybody. I mean, that’s what — that’s what the whole abortion issue is about,’ he said.”
Those justices certainly don’t agree.
Alabama Governor Kay Ivey, South Carolina Senator Lindsey Graham, and any other GOP politician who realizes how politically disastrous this ruling is promised to protect IVF clinics. But that’s like closing the barn door after the animals all fled. Anything passed in Alabama, or the United States, could easily be ruled unconstitutional by state and national courts who don’t believe that the abortion issue is about “work[ing] it out to where it’s best for everybody.”
When that decision comes before the U.S. Supreme Court in the coming years, we have a good idea based upon other rulings on reproductive rights how Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett will rule. It will all come down to Brett Kavanaugh, who told us in 2018 during his confirmation that Roe v. Wade was “settled as precedent.”
Trump’s campaign spokesperson refused to say to ABC that he would back a law protecting IVF.
Perhaps some people think they’ll be lucky that they could travel to Canada, or Europe, or Asia and the Pacific Islands for I.V.F. treatment. Good luck on avoiding sanctions by states (see post-Dobbs legislation passed by states on residents), or getting any kid born abroad to receive U.S. citizenship with our current judicial system.
Flush from their victory over I.V.F., that movement is already making plans to “revisit” rulings against birth control. Such attacks would be highly unpopular with legislators and presidential candidates from all political parties, but they’re not driving this bus anymore.
New laws, which can be struck down by such judges, won’t solve the problem. We must elect candidates who will nominate Democratic and Republican judges who are unlikely to have such incredibly narrow views which criminalize what most Americans feel are acceptable modern birth practices, or wield the power of the court against medical facilities. We should also enhance our respect for life after it is born, instead of confining it to the nine months before birth.
John A. Tures is Professor of Political Science and Coordinator of the Political Science Program at LaGrange College, in LaGrange, Georgia.