Alabama IVF Ruling Is About Controlling Who Can Reproduce the Citizenry

A cascade of new attacks on reproductive rights has continued to spread through the U.S. following the Alabama Supreme Court’s ruling last month that frozen embryos are children.

Lawmakers in more than a dozen states are currently considering fetal personhood legislation that could affect IVF. Since the Alabama ruling, Iowa has advanced fetal personhood legislation.

The United States public has largely reacted with shock and horror to the realization that the Republican-led anti-abortion frenzy is now endangering access to in vitro fertilization (IVF) — the infertility treatment in which an egg and sperm are combined in a laboratory and the resulting embryo is then implanted in the uterus. At least three Alabama IVF providers ceased providing the treatment in response, including the University of Alabama at Birmingham. Under enormous national pressure, Alabama Gov. Kay Ivey signed a bill protecting IVF patients and providers in the aftermath of the ruling, which, for the meantime, will allow IVF to continue in the state.

But for those of us who work in reproductive health and rights, the effect of this ruling — that frozen embryos have the same rights as people — wasn’t a surprise.

The Alabama Supreme Court’s ruling was the natural extension of the post-Roe nightmare in which the U.S. finds itself, one that extends far beyond whether abortion is legal or not. This is a natural extension of what the Supreme Court unleashed in Dobbs v. Jackson Women’s Health Organization, which laid the groundwork for the Supreme Court to eradicate the right to privacy, establishing in Griswold v. Connecticut in 1965, and therefore undo the decades of civil rights protections for women and LGBTQ folks. Attacking IVF and establishing fetal personhood is fundamental to dismantling the right to privacy and establishing theocratic rule by determining who is and is not allowed to reproduce the nation.

The constitutional right to privacy was established by the Supreme Court in the 1965 case Griswold v. Connecticut, in which the court struck down bans on contraception for married people. Simply put, the right to privacy means the right to individual bodily and personal autonomy. While it isn’t expressly stated in the constitution, its existence is supported in various places in the Constitution, including the First, Third and Fourth Amendments. It’s this fundamental right on which gender equality and LGBTQ freedom — legal abortion, bans on anti-sodomy laws and marriage equality — is predicated. Conservatives have long sought to dismantle this right. The Dobbs ruling laid the very groundwork for this when Samuel Alito wrote that the right to privacy is “not mentioned” in the Constitution, and therefore not “rooted in the Nation’s history and tradition.”

Eroding the right to privacy is about maintaining white, cisgender, heterosexual men in dominant positions of power. These conservative leaders fear that if everyone in the U.S. has the right to control their own fertility, they will have the ability to determine what the U.S.’s future citizens look like. This aligns with the “Great Replacement” theory, a racist conspiracy theory popular with Republicans that claims that liberals are driving demographic changes to ensure that Democrats win elections.

Establishing fetal personhood is a longtime conservative goal, dating back to Roe v. Wade in 1973. In recent years, as IVF has increased in popularity, banning it has gone from a fringe viewpoint to a mainstream one among conservatives — it restricts who gets to reproduce the nation. IVF has actually become fairly common in the U.S. — according to a recent Pew poll, 42 percent of adults say they know someone who has used fertility treatments.

For people with disabilities, IVF can be a meaningful option to have a child in a way that might otherwise not be possible. For queer couples and trans people, IVF is sometimes their only option to have a family, even though many face increased barriers to accessing it since insurance companies often covers IVF for straight couples but not for queer couples.

Right-wing politicians are incensed that queer couples and trans people even have the ability to potentially pursue IVF because this basic reproductive freedom violates the conservative worldview that only white, heterosexual procreation is acceptable. In the world that conservatives are trying to create, none of these people would be able to create the families they want in the way that they want. That sounds eerily like eugenics.

Conservatives’ attempts to shut down IVF may also be related to their panic about the declining birth rate among young, cisgender white women. The average age of birthing parents has continually increased, and white cis women, in particular, are waiting longer and longer to become pregnant. Right-wing leaders are wringing their hands over this because if white, cis women aren’t having children, early and often, it’s difficult to retain a white-dominated population in the future. At first glance, banning IVF might be seen by some as running at cross-purposes to the white nationalist aim of expanding white reproduction, since social and economic barriers to accessing IVF have resulted in a disproportionate percent of IVF recipients being older white women. However, if IVF bans force white women to pursue having children at younger ages — knowing that they will not be able to freeze their eggs or access IVF support later — that fits neatly into the right-wingers’ eugenicist plans.

But this ruling is even more far-reaching than a eugenics dog whistle. Declaring a frozen embryo a person doesn’t just upend who can pursue IVF and who can’t — it fundamentally restructures whose personhood matters in the eyes of the law. If an embryo is a person, then anything that harms that embryo is akin to harming an actual human person. If a pregnant person trips and falls, accidentally terminating their early pregnancy, are they then a murderer? According to this absurd line of legal thinking, the answer is yes. “Fetal personhood” isn’t just about banning abortion; it’s about establishing that the rights of a fetus, or in this case, a literal embryo, supersede the rights of the pregnant person.

In his concurring opinion to the ruling, Alabama Chief Justice Tom Parker, an elected Republican, wrote that “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.” He claimed that “even before birth, all human beings have the image of God, and their lives cannot be destroyed without effacing his glory.”

In Chief Justice Parker’s view, it isn’t the pregnant person or even their partner who is responsible for life, but a narrow, Christian version of a deity. Parker doesn’t acknowledge other faith traditions, like the fact that Judaism expressly states that a fetus is secondary to the pregnant person. But, of course, he doesn’t need to, because his concurrence wasn’t about stating facts, but about establishing his and other conservatives’ brand of Christian theocracy as constitutional. There is no separation of church and state when the church claims that it is the state. Individuals don’t get to decide if, when and how they have children in that kind of theocracy.

Elected Republicans are already trying to avoid talking about this deeply unpopular ruling, afraid of inspiring even further ire from voters amid the new, pro-abortion rights voting wave. But don’t mistake their silence for support. When handed an opportunity to protect IVF, it was a Republican senator who torpedoed the legislation. The end of Roe v. Wade was the beginning of their earnest quest to eradicate the right to privacy and create a theocratic country in which pregnancy is a state of incubation and white, heteronormative supremacy remains the dominant power structure in the U.S.