Alabama’s IVF ruling shines a spotlight on state supreme court election

Weeks after a state supreme court decision that threatens the future of in vitro fertilization in Alabama, voters on Super Tuesday decided the court’s next slate of justices in a closely watched Republican primary election.

Last month, Alabama’s Supreme Court defined frozen embryos as children, expanding the scope of so-called “personhood” embraced by Christian fundamentalists and anti-abortion groups who believe that life begins at conception – and underscoring the far-reaching impacts of Roe v Wade’s collapse.

The ruling drew widespread condemnation and alarm, with fertility clinics across the state fearing swift legal scrutiny and their forced closure while families were left in heartbreaking limbo.

But the candidates running to replace the state’s retiring chief justice appeared unmoved.

Republican Justice Sarah Stewart, who currently sits on the court and concurred with the controversial decision, is the projected winner of the Republican primary. She will now face Democratic candidate Greg Griffin, a Montgomery County circuit judge.

Her Republican primary rival, former state senator Bryan Taylor, also didn’t reject the court’s “personhood” ruling, saying in a statement in response that “we can uphold the sanctity of life without subjecting IVF clinics to lawsuit abuse”.

Alabama’s 72-year-old outgoing Chief Justice Tom Parker – a proponent of Christian nationalist doctrine who cited the Bible in the court’s IVF ruling – is unable to seek another term; the state forbids judges older than 70 to be elected.

Republican lawmakers who have embraced fetal “personhood” scrambled to respond, revealing the GOP’s deeply confused, ambivalent or intentionally obtuse views on reproductive health, just as Republicans flailed in the wake of the US Supreme Court’s decision to overturn Roe.

IVF accounts for roughly 2 per cent of births in the US, according to the Center for Reproductive Rights. But since the beginning of the year, more than 40 bills with “personhood” language have been proposed in at least 16 states, according to an analysis from Planned Parenthood Action Fund.

Abortion rights advocates and Democratic candidates already were immersed in 2024 campaigns taking direct aim at anti-abortion Republicans feeling the wrath of voters two years after the Supreme Court’s decision in Dobbs v Jackson Women’s Health Organization.

Candidates in federal races are pointing to the Alabama case as a warning; President Joe Biden has explicitly linked the Alabama ruling to the Supreme Court’s reversal of Roe and Mr Trump’s installation of three conservative justices to the high court. Vice President Kamala Harris and Health Secretary Xavier Becerra have met with families and IVF patients, and Democratic members of Congress rushed legislation to protect IVF nationally.

But the Alabama case has magnified the role of state supreme courts in the fight to preserve abortion rights, with elections for state justices emerging as a new front in the post-Roe battle.

There are at least 80 races for state supreme court seats in 33 states this year. Alabama was among four states with supreme court races on Super Tuesday.

After the US Supreme Court reversed Roe v Wade, abortion rights advocates and others have filed at least 40 lawsuits challenging anti-abortion laws in 23 states, with many cases reaching the bench at their respective state courts.

Alabama’s state legislature is also dominated by Republican lawmakers, who passed legislation through the state House and Senate last week to “provide civil and criminal immunity for death or damage to an embryo to any individual or entity when providing or receiving goods or services” related to IVF.

The legislation states that “no action, suit, or criminal prosecution for the damage to or death of an embryo shall be brought or maintained against any individual or entity when providing or receiving goods or services related to in vitro fertilization.”

But the measure does not answer whether an embryo created by IVF should be treated as a child under Alabama law – the core issue in the state supreme court ruling. Statements from Donald Trump and Republican members of Congress have also ducked the issue, instead vowing to “protect” IVF without addressing the anti-abortion movement’s belief that life begins at conception, the central premise of the Alabama ruling.

Alabama’s Supreme Court asserted that “an unborn child is a genetically unique human being whose life begins at fertilization,” a statement not shared by scientists and one that is squarely at odds with how IVF works. The process typically involves the fertilization of several eggs at once to increase the likelihood of an embryo developing, or the storage of embryos that can cost families thousands of dollars a year.

If each is considered a “child,” doctors could only then create one at a time, significantly reducing the chances of a successful procedure, while exposing clinics to potential liability that amounts to “murder” under Alabama’s ruling.

The state supreme court determined that people can be held legally responsible for destroying embryos under the scope of a wrongful death law.

“The devastating IVF ruling in Alabama has sent shockwaves throughout the nation – and unfortunately we know attacks on access to fertility services don’t end here,” according to a statement from Democratic Legislative Campaign Committee President Heather Williams.

“Republicans across the country have made crystal clear their mission to undermine the full spectrum of reproductive rights – from extreme abortion bans to restrictions on contraception and IVF services,” she said.

While Republican lawmakers scrambled to deliver a cohesive response to the Alabama ruling, anti-abortion activist lobbyists and legal groups that have fuelled the GOP’s opposition to abortion rights were quick to celebrate it.

A lawyer for conservative Christian legal group Alliance Defending Freedom – which led the challenge that overturned Roe and will soon be at the Supreme Court in an attempt to strip government approval of a widely used abortion drug – called the Alabama ruling a “tremendous victory for life.” Students for Life celebrated the ruling: “The Alabama Supreme Court has acknowledged that human embryos are children!”

An author at the powerful right-wing think tank The Heritage Foundation called the Alabama decision an “unqualified victory.” Far-right commentator Michael Knowles has compared IVF to rape, labelled the procedure “morally dubious,” and suggested doctors should be criminally prosecuted.

Republican House Speaker Mike Johnson also applauded Alabama lawmakers for “immediately working to protect life and ensure that IVF treatment is available throughout the state.” But he’s also sponsoring federal legislation that would define “human person” and “human being” as “each and every member of the species homo sapiens at all stages of life, including the moment of fertilization.”

This story was initially published on 4 March and has been updated with developments