On February 16, the Alabama Supreme Court ruled that frozen embryos are "children," and fertility clinics that destroy frozen embryos could be sued under Alabama's Wrongful Death of a Minor Act. In response, at least three Alabama clinics have stopped offering in-vitro fertilization (IVF) treatments, fearing legal liability. This was both a blow to Alabamans hoping to have children and a political problem for Republicans. 

Republican politicians quickly issued statements to distance themselves from the ruling. For example, on February 23, former president Trump posted this on Truth Social:

Like the OVERWHELMING MAJORITY of Americans, including the VAST MAJORITY of Republicans, Conservatives, Christians, and Pro-Life Americans, I strongly support the availability of IVF for couples who are trying to have a precious baby. Today, I am calling on the Alabama Legislature to act quickly to find an immediate solution to preserve the availability of IVF in Alabama.  

Trump's statement, however, ducks the core issue. Alabama's Supreme Court did not ban IVF, nor did the court say it should be unavailable to Alabamans. The concurring opinion, written by Alabama Chief Justice Tom Parker, discusses how IVF could be made available while affording frozen embryos the same rights as living children. The problems stem from the Alabama Supreme Court's assertion that "an unborn child is a genetically unique human being whose life begins at fertilization." Once you accept this premise, IVF may be technically available, but it will result in worse outcomes for many prospective parents. 

IVF involves removing eggs from the ovaries and combining them with collected sperm in a petri dish for fertilization. This doesn't always result in a healthy embryo that can be implanted in the uterus. Thus, doctors will typically fertilize multiple eggs simultaneously to increase the odds of a healthy embryo developing. If you consider each frozen embryo a "child," doctors need to create just one embryo at a time, reducing the likelihood of a successful procedure. Or create extra embryos that are never implanted, requiring the embryos to be stored indefinitely at the cost of $1,000 per year. Any mistakes by a fertility clinic that result in the destruction of an embryo could result in murder charges. 

Some Alabama fertility clinics are continuing to operate under these new restrictions. The Fertility Institute of North Alabama, for example, is continuing to offer IVF but plans "to fertilize fewer eggs to avoid the risks associated with discarding unused embryos." This will both increase the price of the procedure, which already costs $10,000, and decrease the likelihood of success. 

The way to avoid this is to establish in Alabama law that a frozen embryo does not have the same legal rights as an actual child. But Trump explicitly avoids saying this in his statement. That's because the notion that life begins at fertilization is the position of the anti-abortion groups supporting Trump and most Republicans in Congress.  

In this Congress, 124 House Republicans — including House Speaker Mike Johnson (R-LA) — are co-sponsoring the Life at Conception Act. The bill states that "the terms 'human person' and 'human being' include each and every member of the species homo sapiens at all stages of life, including the moment of fertilization." Further, "Congress hereby declares that the right to life guaranteed by the Constitution is vested in each human being." If this bill were to become law, the issues facing IVF clinics in Alabama would spread nationwide. 

In response to the Alabama decision, Johnson issued the following statement:

I believe that every single child has inestimable dignity and value. That's why I support IVF treatment, which has been a blessing for many moms and dads who have struggled with fertility. I applaud the Alabama legislature for immediately working to protect life and ensure that IVF treatment is available throughout the state. 

Johnson's declaration that he "support[s] IVF treatment" and wants it to be "available throughout the state" does not mean anything. Members of the Alabama Supreme Court could endorse similar statements. Johnson is sponsoring a bill that includes a frozen embryo as part of the definition of "child." Once you define a frozen embryo as a child, IVF treatment becomes unaffordable or ineffective for many people. 

The impact of the Life at Conception Act on IVF is well-known to the bill's sponsors. The Senate version explicitly states that "Nothing in this Act shall be construed to require… a prohibition on in vitro fertilization." The bill can still impose harmful limitations on IVF without a full ban. But the House version does not include any carve-outs for IVF. 

Numerous sponsors of "Life at Conception Act" claim to support IVF

Many sponsors of the Life at Conception Act, which would severely limit the availability and efficacy of IVF nationwide, claim to support IVF. 

On February 22, Congresswoman Michelle Steel (R-CA), posted on X that she believes "all life is a gift" but "does not support federal restrictions on IVF." But on January 12, 2024, Steel co-sponsored the Life at Conception Act, which would have the impact of restricting IVF on the federal level. She is also silent on state-level restrictions on IVF in Alabama or elsewhere. 

On February 23, Congressman David Schweikert (R-AZ) posted on X that "IVF is a valuable and important tool for many Arizona families," and he "will oppose any effort to restrict it." Schweikert does not address that on July 28, 2021, he co-sponsored the Life at Conception Act, which would restrict IVF by defining frozen embryos as human beings. 

Congresswoman Ashley Hinson (R-IA) posted on February 23 that "IVF should remain an available option for women." But, on January 22, 2024, Hinson co-sponsored the Life at Conception Act. Her statement also doesn't address IVF restrictions. 

Other members of Congress who have sponsored the Life at Conception Act, in the current Congress or prior Congresses, and then issued statements claiming to support IVF include Congresswoman Nancy Mace (R-SC), Congressman David Valadao (R-CA), Congressman Don Bacon (R-NE), and Congresswoman Mariannette Miller-Meeks (R-IA). 

Congressman Michael Burgess (R-TX) offered the most forthright discussion of the IVF issue by a sponsor of the Life at Conception Act. Burgess wrote that IVF "is a weighty responsibility when you understand life's profound value, whether in the womb or outside of it." Burgess believes "[l]ife begins at conception." Therefore, "we need to have a serious conversation to ensure professional organizations are promoting safe, accurate, and updated guidelines to care for embryos with the same diligence and compassion as caring for any patient."

This is exactly the same position as the Alabama Supreme Court. 

What it takes to restore full access to IVF in Alabama

Some Alabama Republicans have announced their intention to introduce legislation to protect access to IVF in Alabama. But, ten days after the Alabama Supreme Court's decision, no such legislation has been introduced. 

The only legislation addressing the issue was introduced by Alabama House Minority Leader Anthony Daniels (D). Daniels' bill establishes that "any fertilized human egg or human embryo that exists outside of a human uterus is not considered an unborn child or human being for any purpose under state law." It has no Republican co-sponsors. 

But even Daniels' bill may be insufficient. The Alabama Supreme Court's majority argues that the Alabama Constitution requires frozen embryos to be considered children, citing a 2022 amendment that "acknowledges, declares, and affirms that it is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate." So even if the Alabama legislature established a law allowing fertility clinics to conduct IVF as it did previously, the Alabama Supreme Court may rule that such legislation is unconstitutional. 

Fixing the situation in Alabama may require repealing Alabama's 2022 constitutional amendment. That's something no Republican on the state or federal level has supported.