IVF Ruling

A ‘Stunning’ Element of the Alabama IVF Ruling

A legal historian who studies the abortion battle explains why the state Supreme Court’s decision is so momentous.

By MEGAN MESSERLY

The Alabama Supreme Court ruling effectively cutting off access to in-vitro fertilization in the state created a firestorm for Republicans. Many of their friends in the anti-abortion movement were celebrating.

The Supreme Court’s decision to overturn Roe v. Wade marked a decades-long triumph for the right. But it’s also exposed tensions in the alliance between Republican politicians, who face voter backlash, and anti-abortion activists who seek even further restrictions.

The Alabama IVF controversy is the latest part of that — and it’s bringing to the fore a larger debate over fetal personhood that has long existed at the fringes of the conservative movement.

Mary Ziegler, a leading historian on the abortion battle and a law professor at the University of California, Davis School of Law, says widespread adoption of fetal personhood laws would have far-reaching policy implications, including criminalizing people who receive abortions and banning certain kinds of contraception. Politically, she notes, it’s already straining the relationship between the anti-abortion movement and the Republicans who are eagerly trying to showcase their support for IVF.

“There’s clearly more of a divergence here between the anti-abortion movement and the GOP than the GOP is suggesting,” she says. “Part of the tension lies in the fact that there are any number of anti-abortion groups that don’t want to clarify that IVF is protected because they don’t think IVF should be protected.”

This interview has been edited for length and clarity.

Since the Dobbs decision came down, much has been made of this idea that Republicans are the dog who caught the car — unprepared for this moment both policy wise and politically. Is the current IVF episode an example of that?

It wasn’t just the dog that caught the car. Once Dobbs occurred, there were pretty foundational shifts in how the anti-abortion movement operated, who was calling the shots within the movement, and what the movement’s relationship to the GOP was. The terrain has shifted in ways that are somewhat unpredictable that are making it even harder for the GOP to know what to do right now.

When you say foundational shifts, what do you mean?

Historically, people thought of the anti-abortion movement, or the pro-life movement, as relying on the Republican Party, and the Republican Party would often pay lip service to the priorities of the anti-abortion movement and then not ultimately really do a whole lot to advance the movement’s cause.

In the Trump era, the GOP, and particularly former President Donald Trump, have been really heavily reliant on conservative evangelical Christians for their political fortunes. That creates a setup where the GOP relies heavily on anti-abortion voters even as it wants to distance itself from anti-abortion policies — so that balance has shifted.

Before Dobbs, there was also a sort of strategy hierarchy within the anti-abortion movement because the movement was focused, at least in the short term, on the elimination of Roe v. Wade. The groups that were viewed as the most capable Supreme Court strategists were often able to advise other groups and state legislators on what to do. There was fear that the wrong move could jeopardize the campaign to overturn Roe. Now that Roe is gone, that hierarchy isn’t there anymore, and there are any number of groups that have different pockets of influence.

For the last week, we’ve heard GOP lawmakers pledge their support for IVF. Many of them seem to genuinely support the procedure, or have even used it themselves. But the debate is really about what to do with unused embryos. How do the various facets of the anti-abortion movement and their Republican allies square the circle here?

There’s clearly more of a divergence here between the anti-abortion movement and the GOP than the GOP is suggesting. Part of the tension lies in the fact that there are any number of anti-abortion groups that don’t want to clarify that IVF is protected because they don’t think IVF should be protected — at least as it’s currently practiced, meaning no disposal of embryos, no donation of embryos and no storage of embryos.

Prior to Dobbs, people in the anti-abortion movement embraced personhood, but it was unthinkable that anyone would get it recognized in federal law — or even in enforceable ways in state law in the interim — because of Roe. I don’t think there was an entire working out of — what does it mean, and how do we enforce it? What would its implications be for IVF? Is everyone on the same page about the answers to these questions? They didn’t need to be. I think some of those questions are being worked out in very public and very messy ways as a result.

Clearly some Republicans, though not all, are really concerned about the implications of the ruling for IVF — and the implications for the Republican Party.

Do the movement and the party need to get on the same page on this?

Not really, no. There are two points of view. One point of view would say, well, for the anti-abortion movement to get anywhere, Republicans need to be in power. If they’re not in line on this and the movement is pursuing a course of action that hurts Republicans come November, that will hurt the movement.

Another point of view is that in a lot of states where the movement is operating, there is no realistic political competition. These are single party states. Regardless of what the movement does in those states, there’s not going to be any cost to Republicans come November. The movement needs to do what’s best for the movement and for its agenda and let the Republican Party figure it out.

I think increasingly that latter view is winning out. The older “You don’t want to jeopardize Republicans’ elections because Republicans are the movement’s path to power” doesn’t carry as much currency today as it once did.

Some view personhood laws as essentially valuing the life of a fetus over that of the person carrying the pregnancy. Is that a fair critique? Does it work out that way in practice?

There are other countries in other contexts that recognize both abortion rights and fetal rights. Conceptually, there’s no by-definition idea that you have to criminalize certain things in order to recognize fetal rights.

There’s also a question of what people intend with these laws versus their real-world effects. Some people in the anti-abortion movement sincerely think that they can honor women and pregnant people’s lives and fetal lives the same. In practical terms, if the instrument you use to recognize fetal rights is really harsh criminal punishment, the practical effect tends to be that you don’t value women’s lives as much. That’s what we’ve seen post-Dobbs.

If you have fetal personhood backed with the full force of criminal law, and a risk averse group of medical providers, whether you’re talking about abortion or IVF, the result is the same, which is that the personhood of one group or the rights of one group are elevated over that of another.

Are there other downsides to fetal personhood laws? What other areas of law or society could those laws complicate?

Well, there’s contraception, in part, because a lot of leading anti-abortion groups view common contraceptives as abortifacients.

Then there’s questions about the criminalization of conduct during pregnancy. To date, it’s been pretty much limited to illegal drug use and overwhelmingly targeting low-income people and people of color who’ve abused illegal drugs. But if a fetus is a person, there’s no reason that wouldn’t or couldn’t be extended to other conduct that leads to miscarriage — for example, that’s contraindicated during pregnancy but not criminal.

We’ve also seen talk within the anti-abortion movement about whether personhood would require the criminal punishment of women and other abortion seekers. There’s a self-proclaimed group of abortion abolitionists who make this argument, that if a fetus is a person it can’t be logically consistent or even constitutionally permissible to not punish women and abortion seekers. So the theory goes, if you are a woman and you’d be punished for killing a six-month-old baby or a three-year-old preschooler, you would surely be equally criminally liable for having an abortion at four weeks because that entity in the womb is a person just as much as the three-year-old or the six-month-old.

Then there are all the other ways that personhood appears in law. Would a fetus be a person for the purpose of census counts, and how would we go about determining that? Would child support be obligatory during pregnancy? Would tax deductions for dependent children apply to fetuses or zygotes? There’s a whole bunch of other questions that could come up. Part of the answer is we just don’t know. I think we’re just beginning to see how that’s going to shake out.

Many Republicans, including Donald Trump, are obviously eager to downplay this issue because it seems like a political liability. Do you think Republicans will go back to embracing fetal personhood if they gain power in November or could there be a recognition of some of the unintended consequences of these laws?

If you’re Donald Trump [and you win], you’re not able to run for reelection again. To the extent you care about what people think, it’s vis-a-vis your post presidential future, it’s not vis-a-vis future elections in which you can’t participate anyways. If you are a person running for senator or governor or even for the House in a divided, contested state, you’re absolutely going to care and have a problem with talking about personhood in ways that would seem to jeopardize IVF.

If you’re not in a contested seat, and you need to worry about a primary challenge from your right, or you’re in a politically uncompetitive state, you may have every incentive to continue pushing the envelope on personhood, including in the context of IVF. Everyone is not going to have the same incentives.

I would expect that after the election, and probably to a lesser extent before the election, we’re going to see people in the Republican Party doing what’s best for their own political futures without a lot of regard for how it’s affecting other people’s races.

As Republicans are making those decisions, how much flexibility do you think anti-abortion activists will give them?

It depends on who it is. We’ve already seen former President Trump being given a lot of grace by the anti-abortion movement because, one, there’s not much of a choice because of the hold Trump has over that part of the party, and two, I think people close to Trump fully believe that he’s going to use executive power to ban abortion without Congress, regardless of what he’s saying on the campaign trail. There’s also a pretty strong tendency to dismiss anything Trump is saying that is more moderate on abortion as, from the standpoint of the anti-abortion movement, a necessary evil on the campaign trail.

That isn’t the case with other candidates, because the anti-abortion movement can try to find an alternative to those people in the way they can’t with Trump. That’s especially true in state races, but to a lesser extent that threat is out there in congressional races, too.

What happens if activists get their wish and secure federal personhood legislation one day?

They’re not going to ever secure federal personhood legislation. It would be a judicial decision. The Supreme Court could hold that, as a matter of the original public meaning of the 14th Amendment, the word “person” applies from the moment an egg is fertilized.

What that would mean — who knows? Anti-abortion groups would maintain that pretty much all liberal abortion laws, including those that protect a right to reproductive rights in state constitutions, would violate the federal constitution by denying the due process and equal protection rights of the unborn child. Beyond that, there are a lot of unanswered questions.

Take Texas, which has a law which says you can’t punish women for abortion. Would that be unconstitutional if a fetus is a person? I don’t know. Would it be unconstitutional to have a law that permits IVF? Not only would there be no federally protected reproductive rights, there would be no opportunity for voters to secure any kind of reproductive rights, regardless of what they wanted.

Are there any broader implications you see from the fact that the Alabama Supreme Court ruling leaned so heavily on the Bible?

There have long been Christian legal organizations and defense funds and so on. But in recent years, since the aughts, groups like the Alliance Defending Freedom have tried to not just have Christian lawyers making arguments but to have a Christian legal bar that can influence elite law firms, the Supreme Court and academia, and to begin making the case that the traditions and history of the United States are avowedly Christian, and that the Constitution should be interpreted in line with Christian principles, because that’s what the nation’s history and tradition would dictate. In other words, to say there’s nothing wrong with talking about God’s glory and wrath because what you’re really doing is just talking about the history and tradition of the United States.

That argument’s been made in the Christian legal movement in training sessions, in publications, meeting minutes and correspondence for a really long time. It’s been made in state legislatures, too. What’s stunning or new is to see this in a state supreme court opinion — to see judges embracing it.

It’s worth emphasizing that groups in the Christian legal movement don’t make arguments like this publicly, or at least very often in litigation. The Alliance Defending Freedom, which is obviously embracing this ruling as an expression of fetal personhood, is currently in the U.S. Supreme Court in two independent cases on abortion this term, and they’re not talking about Scripture in either one. I don’t know if the major players in the Christian legal movement think that now is the opportune time to bring these arguments out — especially in the context of something that’s going to be unpopular, like jeopardizing IVF. To connect that to Christian teachings would probably not be the best strategic move, and I think some leaders of the Christian legal movement would recognize that.