Reproductive rights: IVF becomes battleground as states redraw legislative lines

Ruth Green, IBA Multimedia JournalistThursday 28 March 2024

Since the start of the year, more than a dozen US states have moved to give embryos or foetuses legal rights and protections, pushing reproductive rights back up the agenda of national debate at a febrile time ahead of the US presidential election.

In February, Alabama’s Supreme Court ruled that frozen embryos should have the same legal rights as children. Following the ruling, clinics across Alabama ceased invitro fertilisation (IVF) treatments due to fears staff could face prosecution.

Reproductive rights advocates heavily criticised the decision, saying it upended fertility care in the state and failed to understand the science behind IVF, which accounts for around two per cent of US births. They also said it ran counter to the original intention behind the ‘wrongful death’ claim filed on behalf of three couples whose frozen embryos had been accidentally destroyed at a fertility clinic.

The ruling proved particularly controversial in a state where lawmakers have repeatedly sought to tighten restrictions on reproductive rights.

In 2019, Alabama’s Senate passed legislation to prohibit abortion from conception with no exception for rape or incest. The law came into effect in 2022 following the US Supreme Court’s decision to uphold Dobbs v Jackson Women’s Health Organization (Dobbs), which dramatically overturned the constitutional right of US citizens to access abortion services.

This is part of the chaos we knew would ensue if Roe v Wade was overturned. With politicians at the helm instead of doctors, reproductive healthcare is in crisis

Elisabeth Smith
Director, State policy, Center for Reproductive Rights

Elisabeth Smith, director of state policy at the Center for Reproductive Rights (CRR), says Alabama’s IVF ruling was indicative of the fallout two years on from Dobbs. ‘This is part of the chaos we knew would ensue if Roe v Wade was overturned,’ says Smith. ‘With politicians at the helm instead of doctors, reproductive healthcare is in crisis.’

Just days later, and despite widespread national backlash, Senate Republicans blocked a bill that would have established a federal right to fertility treatment.

A week later, there was sufficient outcry in Alabama for its lawmakers to hastily pass legislation to protect IVF providers from criminal prosecution and civil lawsuits. Although fertility treatments resumed, the damage was already done, says Karla Torres, senior counsel for US human rights at the CRR. ‘The ruling has caused immediate and devastating harm to people seeking or receiving IVF in the state who have had their time-sensitive health care indefinitely paused, and it will continue to cause them harm as Alabamans try to make sense of this newly adopted law.’

The ripples have been felt elsewhere, too. In March, Iowa passed its own fetal personhood bill which would have made it a criminal offence to cause the death of ‘an unborn person’ as defined as ‘an individual organism […] from fertilization to live birth.’

The bill was ultimately blocked from advancing in the Senate over concerns the proposals could have ‘unintended consequences’ for IVF care in the state. It does, however, show the impact of the original Alabama Supreme Court decision.

Iowa is not alone. Research by the Planned Parenthood Action Fund indicates that so far this year at least 40 bills with ‘personhood’ language have been proposed in at least 16 states.

Matt Kaiser, Senior Vice-Chair of the IBA Criminal Law Committee and partner at Kaiser in Washington DC, is concerned about what tone these developments set in a political climate where reproductive rights continue to polarise society. ‘The lasting impact is the use of religion or religious doctrine to interpret statutes or to interpret and create law,’ he says. ‘The chief justice of the Alabama Supreme Court was very aggressive in using his position to further his religious beliefs, which has traditionally not been what judges do in the United States. We're a secular country and there's supposed to be a division between Church and State. It feels as though it’s an erosion of that wall and it's an erosion of those norms in a way that I think is new and potentially quite troubling.’

As Alabama’s Supreme Court was ruling on the IVF case, France passed a constitutional amendment to make abortion a constitutional right. This transatlantic ‘juxtaposition’, Kaiser says, exemplifies how alarmed we should be about the direction of travel for reproductive rights in the US. France’s President Macron has since doubled down and called on the EU to guarantee the right to an abortion in its Charter of Fundamental Rights.

The IVF case has reignited national debate in the US on reproductive rights heading into November’s presidential election. The fight to preserve access to abortion has already become a key issue dominating the 80 elections for state supreme court seats that are set to take place across 33 states this year.

It’s also played out in Alabama in a contentious special election for a State House seat in District 10, north Alabama – a seat which has long been held by Republicans and where Donald Trump won by a single percentage point in 2020.

On 26 March, democrat nominee Marilyn Lands won the seat decisively on the back of a campaign that highlighted her own painful abortion story two decades ago. Republicans will still hold a supermajority in the Alabama legislature, but Lands’ victory was ‘a harbinger of things to come’, says Heather Williams, president of the Democratic Legislative Campaign Committee, in a statement. ‘Republicans across the country have been put on notice that there are consequences to attacks on IVF.’

These developments also come as the US Supreme Court hears three high-profile cases centred on access to abortion care, indicating how far-reaching the legal implications of the Dobbs decision have been for reproductive rights across the US.

On 26 March, the Court heard oral arguments for Alliance for Hippocratic Medicine v Food and Drug Administration (FDA), a case which examines the safety of medicine and threatens access to mifepristone, a drug typically used in medication abortions in the US. In April, the court will hear two consolidated cases, Moyle v United States and Idaho v United States, which both question whether federal law requires hospitals to perform medically necessary abortions.

Image credit: IVF Lab, Mor/AdobeStock.com