The Alabama Supreme Court became the first to test the limits of the Supreme Court’s Dobbs decision in ruling that frozen embryos are children, a decision which is already having a chilling effect on access to in vitro fertilization (IVF).
Alabama Supreme Court’s IVF Decision
Alabama’s controversial frozen IVF ruling stemmed from wrongful death lawsuits brought by three couples whose frozen embryos were accidentally destroyed. While the trial court dismissed the suits, the Alabama Supreme Court reversed, holding that are frozen embryos are “children” for purposes of Alabama’s Wrongful Death of a Minor Act. As explained by the court:
This Court has long held that unborn children are “children” for purposes of Alabama’s Wrongful Death of a Minor Act, § 6-5-391, Ala. Code 1975, a statute that allows parents of a deceased child to recover punitive damages for their child’s death. The central question presented in these consolidated appeals, which involve the death of embryos kept in a cryogenic nursery, is whether the Act contains an unwritten exception to that rule for extrauterine children – that is, unborn children who are located outside of a biological uterus at the time they are killed. Under existing black-letter law, the answer to that question is no: the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location.
In reaching its decision, the court cited the Sanctity of Unborn Life Amendment to Alabama’s state constitution, which affirms that “it is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.” A concurring opinion by Chief Justice Tom Parker invoked the Bible in discussing the sanctity of unborn life. “Even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory,” Parker wrote.
While anti-abortion activists have applauded the ruling, backlash against the decision has come from both sides of the aisle. The Alabama Legislature is working to enact legislation clarifying that fertilized human eggs do not qualify as human beings under Alabama law when stored outside a uterus; however, the fallout has already started. Clinics across Alabama have paused IVF treatments over concerns about potential liability for doctors, given that embryos can be damaged or become unviable at any time during an IVF process. The decision also calls into question whether patients can discard embryos that they no longer wish to use.
“No court — anywhere in the country — has reached the conclusion the main opinion reaches,” Justice Greg Cook wrote in his dissenting opinion in the case, adding that it “almost certainly ends the creation of frozen embryos through in vitro fertilization (IVF) in Alabama.”
Supreme Court’s Dodd Ruling Made Alabama Decision Possible
The Alabama Supreme Court’s decision is extreme, but it shouldn’t come as a complete surprise. Even if it wasn’t the endgame, the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022) cleared the way for the Alabama ruling. By eliminating the constitutional right to abortion and giving states authority over abortion access, the justices empowered the Alabama Supreme Court to rely on its constitutional “right to life” amendment to decide a reproductive issue beyond abortion.
Not surprisingly, critics of the Alabama ruling are concerned that it has created a roadmap for those seeking to target fertility treatments and other reproductive health services. They also argue that the ruling demonstrates that the goal of the anti-abortion movement was never just to overturn Roe, but to establish fetal personhood, which is premised on the belief that human rights are conferred at conception. Fetal personhood bills had been introduced in at least 14 state legislatures during the current 2024 session. While such bills were once a pipe dream of anti-abortion activists, overturning Roe removed a significant obstacle.
Should members of the U.S. Supreme Court believe that the Alabama Supreme Court took its Dobbs decision too far, the Court is unlikely to intervene because the case does not turn on a question of federal or constitutional law, which is required for the justices to review state supreme court decisions. Nonetheless, the Court is poised to revisit access to abortion later this term.
In Danco Laboratories, L.L.C. v. Alliance for Hippocratic Medicine, which is scheduled for oral arguments in March, the justices will resolve legal challenges involving access to mifepristone, a drug used in most medication abortions. One month later, the Court will consider a pair of cases centered on whether a federal law, the Emergency Medical Treatment and Labor Act, which mandates that hospitals receiving Medicare funding offer “necessary stabilizing treatment” to pregnant women in emergencies, trumps state laws restricting abortion.
Key Takeaway
As evidenced by the Alabama decision and the string of other reproductive rights cases working their way through the court system, overruling Roe was just the beginning. A new round of legal battles will further define the legal landscape around abortion, contraception, and IVF. Without a right to abortion grounded in the Constitution or federal law, the decisions will likely vary significantly throughout the country.