Alabama IVF Ruling Opens New Front in Election-Year Abortion Battles

A ruling by the Alabama Supreme Court that frozen embryos should be considered children has created a new political nightmare for many Republicans, as they try to portray the court’s decision as a fringe view and rush to declare their support for fertility treatments, which have broad support among Americans.

Several Republican governors and lawmakers swiftly disavowed the decision from the Republican-majority court. Democrats promised to make it a top-tier campaign issue. Some Republican lawmakers spoke about their personal experiences with infertility. Others declared that they would not support federal restrictions on in vitro fertilization, drawing a distinction between their support for fertility treatments and their opposition to abortion.

On Friday, former President Donald Trump urged the Alabama Legislature to preserve access to IVF in the state, breaking with a right-wing flank of the anti-abortion movement that supports his presidential bid.

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“The Republican Party should always be on the side of the Miracle of Life — and the side of Mothers, Fathers, and their Beautiful Babies,” he wrote on Truth Social, a social media platform. “IVF is an important part of that.”

Yet, even as some Republicans backed away from the court decision, Republican legislators in conservative states planned efforts to push bills that would declare that life begins at conception — a policy that could have severe consequences for fertility treatments.

Others acted to protect IVF. Tim Melson, a Republican state senator in Alabama, said he planned to introduce legislation clarifying that embryos are not viable until they are implanted in a woman’s uterus.

The division was a new twist on a familiar problem for the party. Since the Supreme Court overturned Roe v. Wade, many Republicans, including former President Donald Trump, have tried to avoid the issue of abortion and reframe their proposals — like a 15-week federal ban — as common-sense policies that can appeal to moderate voters.

But such efforts have repeatedly been undercut by their conservative Christian allies in statehouses, who saw the fall of federal abortion rights as the beginning of efforts to ban the procedure, and related reproductive medical care.

Despite the party’s attempt to control its message, that dynamic is likely to play on repeat. The elimination of federal abortion rights returned abortion policy to the states, empowering a broad collection of state lawmakers and judges to address thorny questions about the intimate details of conception, pregnancy and birth.

The Alabama court ruled last week that embryos made by fertility treatments and stored in a medical facility should be considered children under the state’s law that governs harmful death. The decision was relatively narrow, applying to a specific case in which three couples sued a clinic for inadvertently dropping and destroying their embryos.

But anti-abortion activists, who for years have pushed for a fertilized egg to be considered a person, saw the decision as progress toward accepting fetal personhood and even granting an embryo equality rights under the 14th Amendment.

Jason Rapert, a Republican former Arkansas state legislator and president of the National Association of Christian Lawmakers, said his group planned to discuss potential IVF model legislation at its upcoming meeting in June. They are already pushing bills in state legislatures that would declare that life begins at conception.

“We’re very happy,” said Rapert, whose organization actively promotes what it calls “Biblical principles” through model legislation. “This decision is really big. It further affirms that life begins at conception.”

Democrats have seized on Republican division to fuel their election efforts, hoping restrictions passed by states will mobilize their voters and turn moderates and independents against Republicans. Campaigning in Michigan on Thursday, Vice President Kamala Harris called the court decision “shocking,” but “not surprising” given the overturning of Roe v. Wade.

“This is part of their suicide pact,” New York Gov. Kathy Hochul, a Democrat, said of the Alabama ruling. “This is done in a Republican state with Republican judges. It’s baked now as part of the Republican narrative. It’s absolutely baked. They can’t run from this.”

Nikki Haley, who frequently calls for Republicans to “find consensus” on abortion as she campaigns for president, struggled to address the ruling. On Wednesday, Haley said she believed that embryos created through IVF “are babies,” citing her own experience of conceiving her son through artificial insemination — a process that does not involve the creation of embryos outside a woman’s body.

After facing blowback, Haley clarified her comments hours later, saying she was not expressing support for the Alabama ruling.

“Alabama needs to go back and look at the law,” she said in an interview with CNN, casting the case as an issue of parental rights, not the question of when life begins. “We don’t want fertility treatments to shut down.”

Haley was not alone in citing her own experience with fertility treatments in discussing the ruling. Rep. Michelle Steel, a Republican running for reelection in a swing, suburban Southern California district, said she had struggled to get pregnant.

“IVF allowed me, as it has so many others, to start my family,” said Steel, who has co-sponsored a national abortion ban this Congress. “I believe there is nothing more pro-life than helping families have children, and I do not support federal restrictions on IVF.”

At a forum sponsored by Politico on Thursday, three Republican governors also defended the medical treatment.

“You have a lot of people out there in this country that they wouldn’t have children if it weren’t for that,” said Gov. Brian Kemp of Georgia, who signed a law banning abortion starting at six weeks.

Other Republicans tried to avoid the topic altogether. On Thursday, many declined to comment on the ruling, including House Speaker Mike Johnson, an evangelical Christian who has put his faith at the forefront of his politics throughout his career and has called abortion “an American holocaust.” His home state, Louisiana, has a law that prevents the intentional destruction of embryos.

Republican strategists have advised candidates to shy away from the most aggressive abortion restrictions and avoid long-standing labels like “pro-life,” which they say have become synonymous with banning abortion. They’ve also urged candidates to proactively declare their support for other areas of reproductive health care, including fertility treatments and contraception.

On Friday, the National Republican Senatorial Committee urged its candidates to support the fertility treatment, citing polling by Kellyanne Conway, a former top aide to Trump. The survey, conducted last year, showed broad support for IVF including from self-identified “pro-life” voters and evangelicals.

“By advocating for increased access to these services, opposing restrictions, and emphasizing the importance of supporting families in their journey to conceive our candidates can demonstrate compassion, respect for family values and a commitment to individual freedom,” wrote Jason Thielman, the executive director of the committee.

Dan Conston, president of the Congressional Leadership Fund, the main House Republican super PAC, said it was “useful and important for swing district Republicans to show empathy, sympathy and clearly voice support for consensus positions like IVF.”

Still, in Congress, a small group of far-right members continue to push for anti-abortion measures that their colleagues in competitive districts want to distance themselves from.

Rep. Byron Donalds, R-Fla., told reporters Thursday at CPAC, a conference of conservative activists, that he believed embryos were children because “embryos grow into being adults, like we are.” But he also said that there are “women who have decided to seek that process,” referring to IVF, adding, “and that’s a good thing.”

While polling has shown broad support for abortion rights, there’s less data available about Americans’ views on fertility treatments. The Pew Research Center found in September that 61% of Americans and 54% of Republicans believe health insurance should cover the cost of fertility treatments. The services are widely used: Some 42% of Americans said they or someone they know had used some form of fertility treatment to have a baby.

Mike Pence, the former vice president and one of the anti-abortion movement’s strongest allies, and his wife, Karen, have publicly discussed their use of IVF treatments. “I fully support fertility treatments and I think they deserve the protection of the law,” he told CBS in 2022 after Roe was overturned.

But for some abortion opponents, any fertility treatments that create and dispose of embryos should be out of bounds.

“I can’t name one pro-life group that I know of that would say that they are OK with the IVF procedure,” said Kristan Hawkins, the president of Students for Life.

Some Democrats saw within the ruling the possibility of a clarifying moment for voters. One of them, Sen. Elizabeth Warren of Massachusetts, said that when she raised concerns about the future of fertility treatments immediately after Roe was overturned, some of her Republican colleagues dismissed them.

“I said, once you’ve taken away the protection of Roe that courts are going to head in a lot of different directions in the states,” she said, “and that’s exactly what happened.”

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