It's About the Women, not the Embryos

The Alabama Supreme Court's ruling that frozen embryos are people almost immediately led fertility clinics around the state to halt their in vitro fertilization (IVF) treatment programs. That result was entirely predictable.

IVF requires the creation of "extra" embryos. Given the burden and cost of egg retrieval as well as the risk that any given embryo will not successfully implant or will lead to a pregnancy that miscarries, fertility doctors retrieve multiple eggs. And because frozen embryos lead to a higher pregnancy success rate than frozen eggs that are fertilized after defrosting, standard procedures yield those extra embryos. But frozen embryos are what the Alabama Supreme Court calls "extrauterine children," so now IVF creates a substantial risk of legal liability.

The recent Alabama Supreme Court decision construed the state's Wrongful Death of a Minor Act, which provides a civil cause of action for the minor's parents. It left open the possibility that the clinics could defend against any future case by invoking waivers that patients signed when they consented to IVF treatment. However, the Act also allows a "personal representative of the minor" to sue in the event that the "parents" do not. Fertility medicine providers thus have reason to worry that self-appointed members of a new "embryo bar" will sue if the former destroy unneeded embryos. Moreover, the logic of the court's opinion has implications for other state civil and even criminal liability.

The backlash has been swift, with even strongly anti-abortion Republican politicians in Alabama quickly announcing that they support IVF and will move to change the law to reverse the state high court. Doing so might require the super-majority necessary to propose constitutional amendments. Although the Alabama Supreme Court decision rested its ruling on what it deemed the plain meaning of the statute, it also favorably invoked Article I, Section 36.06 of the 2022 state constitution, which declares the state policy "to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate." Modifying the statute but not amending the state constitution could result in a subsequent state supreme court ruling that protection for "intrauterine" but not "extrauterine" children violates equal protection as informed by Section 36.06.

Although most Americans--including most of the pundit class--have apparently never previously wondered about the implications of the anti-abortion movement for IVF, thoughtful observers have long recognized the danger. "Life begins at conception" has been a core principle of anti-abortion activists for many years, and embryos are the result of conception.

To be sure, some of the states that have been enforcing abortion prohibitions since given permission to do so by the Dobbs decision enforce bans that kick in after some initial period of pregnancy. If a state makes it permissible (even if very difficult as a practical matter) to obtain an abortion up until six weeks of pregnancy, then there is nothing inconsistent about permitting the destruction of a frozen embryo.

But Alabama law bans abortion (subject to an exception where continued pregnancy presents "a serious health risk to the unborn child's mother") from the very beginning of pregnancy. The abortion prohibition makes the killing of a fetus, embryo, or even zygote a class A felony, which results in a minimum prison sentence of ten years. It is extremely unlikely that the Alabama legislature would soften its abortion law to allow ending a pregnancy at the embryonic stage. How, then, do we explain the political support for re-legalizing IVF?

The answer is not about the embryos. It's about the women.*

Let me explain.

For years, feminists have sought to justify the right to abortion in substantial part based on the interest in controlling one's own body. Where abortion is legal, women have a right to abortion but men who fathered a pregnancy don't have a right to require their partners to have abortions because the pregnancy occurs within a woman's body, not a man's. Men and women both have interests in becoming or not becoming parents, but only women have an interest in bodily integrity that continuing or ending a pregnancy implicates.

Indeed, a standard science-fiction hypothetical example (which actually appears in the Alabama Supreme Court opinion for a different purpose) asks whether there should be a right to abortion in the event of the invention of an artificial womb. The standard argument against is that in such circumstances, any right to abortion would have to be justified solely based on the interest in avoiding parenthood and not based on the interest in bodily integrity. Some people think that even in that science-fiction scenario, the interest in avoiding parenthood post-conception should suffice to ground a right to terminate (at least early in fetal development), while others think that there should be no right to abortion absent the interest in bodily integrity. But to my knowledge, nobody thinks that there's a stronger basis for a right to abort a fetus developing in an external artificial womb than inside a woman's body.

And yet, that's the logic of the support in Alabama--and apparently more broadly, even among people who oppose abortion--for allowing IVF and its inevitable destruction of embryos but disallowing abortion from conception onward. In what appears to be the view of the political leaders of one of the most anti-abortion states in the country, the fact that an embryo is inside a woman's body gives her fewer rights than if it were outside her body. The conclusion seems inescapable that for Alabama, controlling women is a feature, not a bug, of prohibiting abortion.

But wait. Maybe I'm being unfair. Isn't the real problem with forbidding IVF that it frustrates a very important countervailing interest--namely, the interest in becoming parents of people who are having difficulty conceiving unassisted? It certainly is, but upon inspection, that doesn't contradict my analysis. Two considerations explain why.

First, it's worth observing that the anti-abortion movement has long touted adoption as an alternative to abortion. But if pregnant women can be told that they should deliver full-term babies and give them up for adoption, why can't fertility-challenged women and couples be told that they should become parents via adoption? In each scenario, adoption would render abortion (of a fetus or embryo) unnecessary.

Second, consider a little thought experiment. Imagine a disease in which, in order to become pregnant, a woman needed injections of a serum that can only be obtained from aborted fetuses. Surely no one in  the pro-life movement would say that it's permissible for other women to become pregnant and have abortions in order to provide the serum for the women who need it to become pregnant. And yet, remember, from the perspective of the pro-life movement, killing an early-stage embryo is tantamount to abortion. So if the goal of becoming a parent justifies IVF despite IVF's inevitable destruction of embryos (i.e., the moral equivalent of abortion), it should also justify having abortions to produce the serum to enable pregnancy. The fact that it almost certainly does not should tell us that the goal of becoming a parent isn't doing quite the work that we might think.

What is doing the work? To my mind, the answer is straightforward. Very many opponents of abortion don't regard the intrusion on women's bodily autonomy as any kind of cost at all. Rather, a woman becoming pregnant and then giving birth is simply carrying out the role assigned to her by God and nature. The U.S. Supreme Court said as much in 1872: "The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator." Abortion, even in the very earliest stages of pregnancy, flies in the face of that destiny and mission. IVF fulfills it.



* Addendum: Above I used the words "woman" and "mother" to describe pregnant persons, notwithstanding the fact that some nonbinary persons and transgender men are capable of pregnancy. I did so here because my goal is to unearth the logic of the anti-abortion movement, which is directed at women (or people assigned female at birth), even though it also affects others as well. In other contexts, I use more gender-inclusive language.