I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”
Are you new here? Get free emails to your inbox daily. Would you rather listen? You can find our podcast here.
Today's read: 12 minutes.
👶
An Alabama court ruling on in vitro fertilization has ignited a debate about the process. Plus, a question about Project 2025.
Today, a growing community of more than 400,000 rely on The Dispatch to help make sense of a political world gone crazy. Get news and analysis that is more than a scripted reality show.
Tangle readers: Claim your exclusive 90-day, all-access FREE trial today.
Today's topic.
Alabama's IVF ruling. Last week, Alabama's Supreme Court ruled in favor of a group of couples suing an Alabama storage facility under the state's wrongful death law after their frozen embryos were lost in an accident. The groundbreaking ruling, in a case dubbed LePage v. Center for Reproductive Medicine, P.C., treated the embryos as children who should be afforded certain legal protections, a theory championed by some anti-abortion groups that has now gotten its first validation from a major U.S. court.
Back up: The case combined two lawsuits filed by three sets of parents who underwent in vitro fertilization (IVF) procedures to have children and opted to have their remaining embryos frozen. IVF involves combining sperm and egg cells in a lab to create embryos, then implanting one or more of those embryos in a woman's uterus. Extra embryos are usually frozen and stored. In December 2020, the parents claimed that a patient entered an "unsecured doorway" at the Mobile, Alabama, hospital where the embryos were being stored and removed several embryos from the cryogenic nursery. The parents’ suit stated that the patient's hand was freezer-burned by the low temperatures, causing them to drop the embryos and kill them.
The parents sued for wrongful death, but a lower court dismissed the case, saying cryopreserved embryos do not fall under the definition of a "person" or "child." However, the state Supreme Court overruled the court’s decision, saying "extrauterine children" located outside the uterus when they are killed are, in fact, children under the state's Wrongful Death of a Minor Law.
That decision was further enforced by an amendment to the state constitution ratified in 2018, when Alabama voters passed a ballot measure that granted fetuses full personhood rights (though the amendment does not mention frozen embryos).
The law "applies to all children, born and unborn, without limitation,” the court wrote. “It is not the role of this Court to craft a new limitation based on our own view of what is or is not wise public policy. That is especially true where, as here, the People of this State have adopted a Constitutional amendment directly aimed at stopping courts from excluding ‘unborn life’ from legal protection.”
The court did not go so far as to say the embryos have the same rights as people, nor did it rule that fetuses have constitutional rights. Rather, the court ruled that embryos are covered under both the wrongful death law and the fetal personhood amendment passed by Alabama voters in 2018.
Now what? Three major IVF clinics in Alabama immediately suspended services after the ruling, saying they needed time to figure out the legal implications. At least 11 states have broadly defined personhood as beginning at fertilization in their state laws, meaning a ruling like this could lead to similar lawsuits popping up across the country. About 2% of births in the U.S. are now done through IVF.
Over the weekend, both Democratic and Republican lawmakers in Alabama said the state needs legislation to protect IVF after the ruling, and Alabama Attorney General Steve Marshall said he has no intention of prosecuting families or providers involved in IVF.
While some anti-abortion groups are celebrating the ruling, others expressed concern about how it might impact families who are trying to have children but struggling to get pregnant. Abortion rights groups suggested the ruling is just the tip of the iceberg, and pointed to the words of Alabama'a Supreme Court Justice Tom Parker, who quoted the Bible in his opinion.
“Human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself,” Parker wrote. “Even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.”
Today, we're going to examine some arguments from the right and left about this ruling, then my take.
What the left is saying.
The left is very concerned about the ruling, saying that it puts the entire practice of IVF in jeopardy.
Some say the legal implications imply that all frozen embryos must be implanted, as a discarded embryo could lead to a murder charge.
Others recognize that the ruling is somewhat narrow, but still fear its ramifications on women’s reproductive health.
In CNN, Mary Ziegler wrote about the "twisted irony" of the Supreme Court's ruling.
“In the United States today, recognizing the value of an embryo or fetus sets a precedent that no state can permit access to abortion — and that anyone who chooses abortion may be committing a crime," Ziegler said. "The irony in the Alabama court’s decision is that more Americans who want to be parents will be unable to achieve that dream. The ruling is extraordinary not only in declaring personhood before birth but also in applying the idea to embryos that haven’t been implanted in the uterus. But the ruling is not just bizarre; its consequences may be profound."
"If an embryo is a person, it can no longer be destroyed, donated for research or potentially even stored," she said. "Some abortion opponents argue that if embryos are persons, each one that is created must be implanted — and that would make even storing embryos for future use impermissible. If any of that comes to pass — and in Alabama, it likely will — that will transform how in vitro fertilization (IVF) works, and will mean a lower rate of success for Americans who already struggle to start a family."
In Slate, Mark Joseph Stern said the decision is "even worse than it sounds."
"Judges are once again playing doctor, to the extreme detriment of women trying to build families," Stern said. "It means that a medical professional who inadvertently damages or destroys a microscopic embryo has maimed or killed a legal person and is on the hook for punitive damages that could run into the millions... Any accidental damage to an embryo, and even a failed thawing or transfer, could trigger a calamitous wrongful death suit. And what about unused embryos? The Alabama Supreme Court’s decision suggests that if patients refuse to pay for their storage, the clinic must simply preserve them for free, forever, lest it get slapped with a suit."
"According to the majority, this amendment requires courts to interpret 'the rights of the unborn child equally with the rights of born children.' In practice, that appears to mean that every state law involving 'children' must be extended to embryos—including criminal laws, up to and including homicide," Stern said. "Does the destruction of an embryo, intentional or not, now constitute murder in Alabama? The majority ominously reserved this question for a future case."
In Vox, Rachel Cohen criticized the decision that "invoked God" to claim that frozen embryos count as children under state law.
"This decision and its very obvious fallout are a victory for an extremist wing of the anti-abortion movement I’ve been covering for the last two years. These particular activists believe in the radical idea of ‘fetal personhood,’ meaning they want to endow fetuses (and embryos) with full human rights and legal protection," Cohen said. “It’s also a reminder that the overturn of Roe v Wade is about more than just abortion. It has ramifications for the full spectrum of reproductive health care — including birth control and fertility treatments."
"The ruling was somewhat narrow and did not weigh in on the future of other frozen embryos," Cohen said, and "there's a world where this decision could be relatively contained. The case is also not over; the state Supreme Court is sending it back to a district court for further litigation. In short, this victory for the fetal-personhood movement isn’t fully set, but medical providers and patients… are already left trying to piece together answers that nobody yet has."
What the right is saying.
The right supports the ruling, saying that the court is simply enforcing a standard defined by a state law
Some say the law should go further and end the entire practice of IVF, since it means the killing of unborn children.
Others note that IVF is very popular, and that legal protections for it would and should be coming.
In Newsweek, Josh Hammer said the ruling embodies America's legal heritage.
“The groaning from the left-wing media and political class can be easily explained: The Alabama case entails a dispute over the destruction of unborn human life, and there is no greater sacrament for the contemporary secular leftist than the destruction of unborn human life," Hammer said. "The Alabama Supreme Court had held in an uninterrupted line of cases that an unborn child constitutes a ’minor child’ under the state's wrongful death statute—regardless of stage of embryonic or fetal development. Crucially, neither the plaintiffs nor defendants contested this understanding, and the question was not before the court."
"The only legal question in LePage was thus whether the court should legislate from the bench and decree that which the Alabama Legislature had opted not to do itself: Read into the law an 'extrauterine exception’ that would retain the wrongful death statute's inclusion of unborn children developing in utero but remove legal protection for embryos developing outside the womb. The court, appropriately, declined to do so. That's it. That's the whole case."
In The Spectator, Ellie Gardey called IVF “evil” and applauded the Alabama supreme court.
"Several conservative leaders have responded to the Alabama Supreme Court’s decision by denouncing it," Gardey said. "Conservatives need to wake up to reality: In vitro fertilization is an ugly, evil practice that not only kills millions of children but also has led to a society in which we commodify children as assets to be bought and sold and women as bodies that can be purchased… Conservatives should pursue the end of IVF just as adamantly as abortion because IVF entails killing or freezing many children to create just one. This is because each in vitro treatment typically produces 12–15 children of a particular set of parents."
"Nikki Haley’s response to the Alabama Supreme Court decision suggests that some support for IVF is due to ignorance of its evil. Haley correctly maintains that embryos are human persons and rightly denounces the evil of murder. Yet she somehow misses the fact that there is no IVF without murder," Gardey wrote. "Other states have laws similar to Alabama’s Wrongful Death of a Minor Act. They, too, should recognize that those laws apply to embryos produced through IVF. It is the fastest way to slow the mass slaughter of innocents."
The Wall Street Journal editorial board said a supermajority supports IVF, including many conservative leaders, and you can expect Alabama to protect it.
"Mike Pence has a long political record on behalf of the prolife cause, and in his recent memoir he revealed that his wife underwent IVF. 'Karen and I struggled for more than five years with unexplained infertility,' he told CBS. 'I fully support fertility treatments and I think they deserve the protection of the law,'” the board said. “A memo circulated Friday by the National Republican Senatorial Committee pointed to survey data showing supermajority support for IVF. Donald Trump waded in on Truth Social. 'Like the OVERWHELMING MAJORITY of Americans,’ he said, ‘I strongly support the availability of IVF for couples who are trying to have a precious baby.'"
"The same goes for leaders in Alabama," the board continued. "Given the clarification that’s likely coming, the pausing of IVF procedures in Alabama amid the legal uncertainty could produce needless heartache for couples. But with Roe gone, the people reign supreme on abortion policy, and that will be true on in-vitro fertilization."
My take.
Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. Write in by replying to this email, or leave a comment.
Legally speaking, the court’s decision is a logical conclusion of Alabama state law and precedent.
Practically speaking, it’s a terrible result that will have wide-reaching implications for IVF.
Politically speaking, this is a disastrous outcome for Republicans.
Anytime we cover a controversial ruling like this, I like to break it into two parts: The legal arguments, and the practical outcome. Because this case was decided in an election year, I also think it's worth discussing the political ramifications of what just happened.
On the legal merits, this ruling is not that surprising. Alabama's high court has exercised some creative jurisprudence to get to the point where frozen embryos could be protected by law, as Vox's Ian Millhiser laid out. But still, this is both a logical extension of previous rulings, and the logical next phase of the anti-abortion movement's strategy. Alabama voters passed an unqualified fetal personhood bill, and the combination of that bill with pre-existing language about the wrongful death of children made this outcome perfectly plausible. Josh Hammer noted (under "What the right is saying") that the Alabama Supreme Court has held "in an uninterrupted line of cases" that unborn children are granted the same legal protections as minor children under the state's wrongful death statute, regardless of the stage of embryonic or fetal development.
In effect, the court was deciding whether to make an exception for "extrauterine" embryos — that is, embryos existing outside the uterus. I would not have been shocked or surprised had the court gone in either direction in the case, but ultimately the justices argued that the “natural, ordinary, commonly understood meaning” of the word child includes embryos — and argued this was true when the Wrongful Death of a Minor Act was passed in 1872 (state lawmakers then considered the unborn as full legal persons, the majority argued).
Whether or not you agree with that is irrelevant — the court was on pretty solid legal ground to make that interpretation.
As for the practical outcome, it’s simply terrible. Let’s start with the easy stuff first: I want to be clear that I don’t think the hospital was innocent. The details of this case are bizarre (who walks into a hospital and starts fishing around in freezers?), but the hospital seems at the very least negligent. It did not do a good job protecting a very precious thing that belonged to these parents. And the plaintiffs had good reason to pursue a court decision under the wrongful death statute: To collect more money. Justice Will Sellers, who dissented, said “these cases concern nothing more than an attempt to design a method of obtaining punitive damages.”
The ruling is also likely to have narrow implications. Alabama’s criminal homicide or assault law encompasses children in utero, so I doubt we see criminal cases start popping up where someone is charged with homicide for damaging a frozen embryo (again: this was a civil lawsuit). Alabama’s attorney general has already said no such prosecution will happen.
So why is the outcome terrible? Because it undermines the very process of bringing more children into this world. I know so many friends and family members who have benefited from IVF. When I read writing like Ellie Gardey's (under "What the right is saying") describing IVF as "evil," I have no way to reconcile that with my baby cousins or best friends' kids that are the product of IVF. It’s just impossible for me to see these children as the product of "evil" rather than of remarkable scientific advancements that have allowed more and more people to have families.
Of course, that is informed in part by my moral and ethical position on life — and the fact that I see inherently more value in a newborn baby than a frozen embryo. To me, a half dozen frozen embryos never becoming children is worth it for the one that does — especially when the alternative is no new children. I'm pro-family, pro-kids, pro-procreations, and I want as many people who desire it to have the opportunity to be parents.
This lawsuit undermines that — not theoretically, but practically. Alabama's IVF clinics immediately suspended operations after this ruling. Even though IVF clinics are allowed to continue to operate, they could now be confined to practices that we know don’t work as effectively and will with absolute certainty lead to ever fewer children being born. That is to say nothing of how much more expensive the already outrageously expensive treatments will become. Worse yet, we can now expect similar lawsuits to pop up in other states across the country.
Finally, on a political note, this is a disaster for Republicans. According to internal Republican polling, 85% of Americans support IVF. Even former Vice President Mike Pence, perhaps the most high-profile pro-life politician in America, supports IVF (Pence speaks openly about having had children through IVF). House Speaker Mike Johnson (R-LA) also said he supports IVF treatment because it has been "a blessing for many moms and dads" who struggle with fertility. Republican legislators in Alabama are already playing defense, promising to safeguard IVF.
None of that, though, is going to stop Democrats from reminding voters that those assurances are only necessary because of a conservative legal movement. Abortion is the issue helping Democrats win elections right now, and this ruling legitimately represents the "nightmare scenario" many Democrats have warned voters about. Now, they'll be able to use it to their political advantage, no matter how many Republicans try to distance themselves from it.
Disagree? That's okay. My opinion is just one of many. Write in and let us know why, and we'll consider publishing your feedback.
