An Alabama court ruling that says frozen embryos created by in vitro fertilization are considered children — and could trigger wrongful death laws if they are destroyed — is scrambling the fraught politics around abortion in the heat of an election year.
President Biden‘s campaign on Thursday pounced on a decision by the University of Alabama at Birmingham health system to pause in-vitro treatments because the school fears prosecution under the state Supreme Court’s ruling.
Mr. Biden‘s team says the ruling is the direct result of the U.S. Supreme Court’s 2022 decision to let states regulate abortion and is a blueprint for what’s to come if former President Donald Trump returns to the White House.
“What is happening in Alabama right now is only possible because Donald Trump‘s Supreme Court justices overturned Roe v. Wade,” campaign manager Julie Chavez Rodriguez said.
“Across the nation, MAGA Republicans are inserting themselves into the most personal decisions a family can make, from contraception to IVF. With their latest attack on reproductive freedom, these so-called pro-life Republicans are preventing loving couples from growing their families.”
For now, the ruling applies only to Alabama. The decision stems from wrongful death suits brought by couples whose frozen embryos were destroyed in an accident.
The ruling is having a chilling effect on IVF facilities, like the one in Birmingham, that fear wrongful death lawsuits in cases where embryos end up destroyed, since the justices defined the embryos as children.
“The Wrongful Death of a Minor Act applies to all unborn children, regardless of their location,” the justice wrote in an opinion earlier this month.
The opinion said that includes “unborn children who are located outside of a biological uterus at the time they are killed.”
That triggered fears that IVF treatments will be off the table for Alabama parents desperate to have children.
The situation poses thorny questions for conservatives who are pro-life and promote the merits of parenthood and building families.
Couples who have been unable to have children spend thousands of dollars on in-vitro treatment as their best option for children, besides adoption.
Former Vice President Mike Pence says IVF helped him expand his family and should be protected. Some state Republicans who imposed abortion restrictions after the Supreme Court overturned the national right to abortion stressed that IVF procedures wouldn’t be affected by new bans.
Polling by KAConsulting, a firm run by former Trump adviser Kellyanne Conway, found an overwhelming share of Americans support IVF procedures.
“Even within staunchly conservative circles, including pro-life advocates (with 78% support, 39% strongly supporting) and Evangelicals (with 83% support, 44% strongly supporting), there is significant and unwavering support for the IVF procedure,” her December report said.
“Candidates for Congress — and certainly those already serving there — can bank significant political currency by advocating for increased access to and availability of contraception and fertility treatments,” Ms. Conway’s firm said.
The tension around Alabama’s bombshell was on display as former South Carolina Gov. Nikki Haley, a GOP contender for president, this week tried to clear up earlier remarks in which she agreed that frozen embryos are unborn babies.
“I didn’t say that I agreed with the Alabama ruling. What the question that I was asked is, ‘Do I believe an embryo is a baby?’” she told CNN Wednesday. “I do think that if you look in the definition, an embryo is considered an unborn baby. And so, yes, I believe from my stance that that is.”
Yet Ms. Haley, who repeatedly has said the U.S. needs to find a consensus on abortion limits, said she doesn’t want the Alabama ruling to cause division and suggested parents should retain some rights.
“This is not the time where you divide people; you bring people together,” she said. “Our goal is to always do what the parents want with their embryo. It is theirs.”
Her caution reflects the potential backlash that Republican candidates could experience if IVF treatments are threatened as part of the broader debate on abortion limits.
Democrats fumed over the decision to overturn Roe v. Wade, but saw it as a valuable political tool. They used it to drive voters to the ballot box in 2022 and plan to do so again in November, and voters in several states have used ballot measures to protect abortion rights.
Mr. Trump has sought a middle ground on abortion, signaling he supports limits but wants to negotiate reasonable legislation.
The New York Times reported he privately supports a ban on abortion after 16 weeks with certain exceptions, though the Trump campaign blasted it as “fake news.”
Mr. Trump and other Republican leaders have tried to shift the heat back on Democrats who seem to approve of abortion throughout a pregnancy, dubbing them extreme, though the IVF ruling in Alabama is giving Mr. Biden and his allies more fuel for attacks.
“If Donald Trump is elected, there is no question that he will impose his extreme anti-freedom agenda on the entire country,” Ms. Rodriguez said.
Some Republican governors from the South are distancing themselves from the ruling, saying they haven’t looked into the particulars of the decision and they support IVF as an option for couples.
“You have a lot of people out there in this country that they wouldn’t have children if it weren’t for that,” Georgia Gov. Brian Kemp said Thursday at the Politico Governors Summit in the District of Columbia.
Tennessee Gov. Bill Lee said that “generally I am supportive of IVF,” but added he doesn’t know “the details of that case and ruling” yet.