The long arm of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization recently grasped another area of reproductive health care: in vitro fertilization (IVF).
On February 16, 2024, the Alabama state Supreme Court issued a first-of-its-kind decision that overruled a lower court’s dismissal and held that stored embryos are afforded the same legal protection as children under the state’s Wrongful Death of a Minor Act of 1872. The practical impact of the decision is that it allows legal action to be taken against medical professionals performing in vitro fertilization, which involves a series of medical procedures that can potentially lead to a pregnancy. The decision sparked outrage across the country. That outrage encouraged the Alabama Legislature to pass a bill that is narrow in scope to protect IVF providers from civil and criminal liability for embryo loss or damage during IVF treatments. On March 7, Alabama Gov. Kay Ivey (R) signed the legislation into law.
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How IVF and abortion access are connected
Fertility treatments, contraceptives, and abortion all exist on the same spectrum of reproductive health. The World Health Organization defines reproductive health as “a state of complete physical, mental and social well-being … in all matters relating to the reproductive system and to its functions and processes,” asserting that people “have the capability to reproduce and the freedom to decide if, when and how often to do so.”
In their rhetoric, laws, and litigation, anti-abortion strategists have connected abortion and IVF through the concept of “fetal personhood,” which, according to Pregnancy Justice, is a “radical notion [that] enshrines the rights of fertilized eggs, embryos, and fetuses into our legal and political systems.” If a fertilized egg or an embryo is given personhood status, a provider engaged in IVF—which frequently involves embryo loss—could be criminally liable for conducting the procedure. Moreover, according to the American Bar Association, “If a fetus is given personhood status, the pregnant person could be held criminally liable if they have an abortion or endanger the fetus during pregnancy.”
Although fetal personhood laws have been debated at the state level for some time, they have gained new momentum among far-right anti-abortion activists because of their prominence in U.S. Supreme Court Justice Samuel Alito’s majority opinion in Dobbs. Lastly, even though embryos and fetuses are not the same thing, given that more than a third of states have laws that consider fetuses to be people at some point during pregnancy, it is likely that the overlap between IVF and abortion access will be litigated again.
Background: An overview of the three cases
The Alabama IVF case
The Alabama IVF case began in December 2020 when a patient at the hospital at issue entered a fertility clinic, opened one of the tanks that housed the stored embryos, and destroyed the embryos of three different couples by accidentally dropping them on the ground. The couples brought lawsuits based on multiple claims against the fertility clinic and the hospital—one of them being a violation of the Wrongful Death of a Minor Act of 1872. The case was dismissed at the trial court level. The trial court judge stated that embryos “are not people or children for the purposes of the Wrongful Death of a Minor Act, and therefore there was no claim that the couples could bring under that act.” The couples appealed the trial court’s decision to the Supreme Court of Alabama, which overruled the decision on an 8-to-1 vote last month and held that stored embryos can be afforded the same legal protections as children under the Wrongful Death of Minor Act of 1872. Notably, all the judges who decided this case were elected in the state of Alabama as Republican judicial candidates.
The Alabama IVF case is not a one-off and did not occur in a vacuum; it is one of many legal cases that highlight not just how far-reaching the consequences of the Dobbs decision are, but also how the politicization of the judiciary is hastening the politicization of medicine.
As discussed above, the public outcry spurred quick, albeit limited, action from Alabama state legislators to provide civil and criminal immunity for IVF providers. However, for numerous IVF patients in the state, damage caused by the ruling can never be undone. During the two-week window between the legal decision and the legislation, three fertility clinics from the largest medical providers in the state made the “impossible decision” to pause new IVF treatments. IVF physicians and specialists noted the flood of calls from their patients, who were terrified that their dreams of having a family would be paused for reasons outside of their control.
This approximately two-week period was but a small window into the mass chaos and confusion that has ensued post-Dobbs. Amid the precarious legal and political climate, only one of the three fertility clinics that paused treatments has resumed services at the time of this publication.
Alliance for Hippocratic Medicine v. Food and Drug Administration
Alliance for Hippocratic Medicine v. FDA is a high-profile, controversial case that began in Texas in November 2022 and is now scheduled for oral arguments at the Supreme Court on March 26. The meritless claims put forth by an extremist anti-abortion group threaten access to mifepristone and the safety of medicine for all Americans. Mifepristone is the first medicine in a two-step regimen approved for medication abortion that is used to end a pregnancy and is also considered a vital drug for miscarriage care.
The Fate of Medication Abortion in the Courts
Learn more about the Alliance case.
Learn more about Idaho v. United States
These three cases underscore how the politicization of the judiciary further politicizes medicine
These three cases have more in common than just access to reproductive care. The intentional choices of the judges in these cases, who sit on various state and federal courts, seemingly indicate a pattern of judges commandeering the power of the judiciary to assert personal preferences over the rule of law. These rulings, in turn, have been profoundly chilling in the world of medicine.
The judges have shown their personal and political biases by using anti-abortion and religious rhetoric
In both the Alabama IVF case and Alliance, the judges’ rhetoric suggests a strong willingness to use specific language that advances their reported personal and political ideology over the rule of law.
One prime example is Alabama Supreme Court Chief Justice Tom Parker, who, as reported by The New York Times, has built a reputation as a “dogged and brilliant architect for laying the groundwork that contributed to the U.S. Supreme Court’s decision in 2022 to overturn a federal right to abortion with Dobbs v. Jackson.” In the Alabama IVF case, Chief Justice Parker wrote a 23-page concurring opinion citing the King James Bible, the Ten Commandments, the Book of Genesis, and other biblical sources as the basis for his legal reasoning to sign on to the majority opinion. Furthermore, in buttressing the legal ruling to grant stored embryos the same legal protections as children, the chief justice used the word “sanctity” to describe “life,” and at times “unborn life,” more than 30 times in his concurring opinion.
Similarly, Judge Matthew Kacsmaryk of the U.S. Northern District Court of Texas—a far-right Trump appointee notorious for his staunch anti-abortion stance—embraced explicitly anti-abortion language in his ruling. Not only does Judge Kacsmaryk’s language shame those who choose abortion, but he also refers to physicians and medical providers who prescribe mifepristone as “abortionists” while qualifying that mifepristone is used to “to kill the unborn human.” Furthermore, despite having no medical or scientific expertise, Judge Kacsmaryk refers to embryos as “unborn humans” because, he argues, “jurists often use the word ‘fetus’ to inaccurately identify unborn humans in unscientific ways.”
The apparent willingness of multiple judges in multiple cases to seemingly assert personal ideology over the rule of law highlights the extent to which the judiciary has become politicized.
On their face, these two cases technically have little in common. The Alabama IVF case deals with a specific Alabama state law from 1872 under the framework of a civil tort claim, while Alliance addresses Fifth Amendment issues in discussing the FDA’s regulatory processes. However, a key similarity is that both cases were decided in part by far-right conservative judges notorious for their blatant use of personal and political ideology in deciding cases.
The apparent willingness of multiple judges in multiple cases to seemingly assert personal ideology over the rule of law highlights the extent to which the judiciary has become politicized. For these judges, their recent conduct highlights that the lines between ideology and the law have become increasingly blurred when it comes to reproductive care in particular.
Medical providers and patients bear the consequences of the politicization of medicine
Since the right-wing Supreme Court majority eradicated the constitutional right to abortion, patients and health care professionals have been caught in a confusing web of evolving challenges with devastating impacts.
Confusion among medical providers and patients is compounded by the criminal and civil sanctions now tied to providing abortion care in many states. In a national survey of 569 OB-GYNs conducted by KFF in May 2023, 1 in 5 office-based OB-GYNs reported they had personally felt constraints on their ability to provide care for miscarriages and other pregnancy-related medical emergencies since the Dobbs decision; and in states where abortion is banned, this share increased to 6 in 10. As a result, pregnant women have been subject to delays in medical care—or denied care altogether—resulting in dire and sometimes fatal consequences.
Moreover, many clinics providing IVF and/or maternal care have shut down, citing post-Dobbs legal cases and abortion bans as the primary reason, diminishing access to maternal care for all families. Beyond the three Alabama fertility clinics that have paused IVF procedures, critical maternity wards such as Bonner General Health in rural Idaho have permanently shut down, indirectly citing the state’s near-total abortion ban and Idaho v. United States as the primary reason.
Indeed, the combination of Idaho’s law and the closure of the clinic has already had a devastating impact in the state, which is experiencing a maternal mortality crisis. This crisis is being further exacerbated by the exodus of OB-GYNs and maternal care providers from Idaho and other states that criminalize abortion care, which harms access to maternal care overall. Notably, a shocking 1 in 5 obstetricians in Idaho have stopped practicing in the state since August 2022, when the ban took effect. The lack of access to facilities and maternal care professionals stemming from Dobbs underscores that states with near-total abortion bans, such as Idaho, are unsafe places for pregnant women.
The judges have shown a dangerous willingness to cherry-pick evidence that seemingly serves their personal ideology over medical consensus
In all three cases, the judges attempted to justify their legal decisions and upend long-standing scientific and medical norms by citing dubious, cherry-picked studies that align with their personal views while completely ignoring the scores of testimony submitted by medical providers with actual credentials and experience.
For example, in the Alabama IVF case, Chief Justice Parker described IVF as “largely unregulated” and the “Wild West” of science to support the legal ruling that stored embryos should be afforded the same legal protection as children. His primary source for this assertion was an academic law journal that was published almost 25 years ago. Putting aside the merits of the claims made in the journal, by choosing an outdated, nonscientific, and nonmedical source and by overlooking the scientific advancements made in the past quarter-century, Chief Justice Parker appears to have intentionally ignored scores of other scientific studies and publications that discuss the safety, prevalence, and effectiveness of IVF in helping people become parents, as well as the entire established field of reproductive medicine. Approximately 1 million children were born through IVF or other assisted reproductive technologies between 1987 and 2015; according to the Centers for Disease Control and Prevention, 97,128 infants were born nationwide via IVF in 2021 alone. Both statistics highlight that IVF is not the “Wild West,” but rather a long-established medical procedure for people seeking to start or grow a family.
Approximately 1 million children were born through IVF or other assisted reproductive technologies between 1987 and 2015.
Similarly, in Alliance, a judge with no medical or scientific expertise attempted to find a drug unsafe despite the FDA’s approval and the objections of the scientific community as well as the drug’s own manufacturer. The judges on both the district court and the 5th U.S. Circuit Court of Appeals relied heavily on two studies that were later recalled due to “undisclosed conflicts of interest” and a “lack of scientific rigor that invalidates or renders unreliable the authors’ conclusions.” Most of the authors of both studies worked for the Charlotte Lozier Institute, the research arm of anti-abortion lobbying group Susan B. Anthony Pro-Life America, and one of the original peer reviewers had also worked for the Lozier Institute.
Additionally, one of the cited studies, which was later retracted by its publisher, erroneously claimed that mifepristone was unsafe by noting an increase in emergency room visits for those taking mifepristone compared with surgical abortion. Despite the fact that leading experts in science and medicine submitted more than 20 other academic studies—none of which were retracted—and six amicus briefs on the safety and efficacy of mifepristone, both Judge Kacsmaryk and the 5th Circuit either directly cited or referenced the flawed study multiple times. A potential reason for why is because it was one of the few studies that aligned with their personal ideologies. If so, the judges have made a disingenuous attempt to undermine the FDA’s repeated findings on the safety of mifepristone.
Judges, with no substantive background in science or medicine, appear eager to rewrite scientific and medical norms with their personal preferences.
Lastly, in Idaho v. United States, the three-judge panel at the 9th U.S. Circuit Court of Appeals that reviewed an emergency appeal request from the state of Idaho—notably, all conservative Trump appointees—seemingly ignored expert testimony and amicus briefs submitted by emergency medical providers in Idaho. Even though none of the judges had any medical training, they concluded that medical providers were no longer subject to an irreconcilable conflict between the Idaho law and EMTALA because of recent shifts in Idaho’s abortion landscape.
However, the 9th Circuit judges did not acknowledge three amicus briefs from medical associations and written testimony from emergency care providers in Idaho that explicitly argued that these new updates did not change anything for them. Notably, emergency care providers in Idaho provided the stories of seven patients who recently experienced medical conditions that required an abortion as stabilizing medical treatment under EMTALA but did not fit into the exceptions of Idaho’s near-total abortion ban. These patient conditions included preeclampsia with severe features, HELLP syndrome, and hypovolemic shock due to blood loss. In each case, the emergency care provider would have been subject to criminal and civil sanctions under Idaho state law for providing mandatory treatment under EMTALA. In its decision, the three-judge panel failed to address any of this evidence presented to them.
Cumulatively, these three cases highlight an alarming trend when it comes to abortion access: Judges, with no substantive background in science or medicine, appear eager to rewrite scientific and medical norms with their documented personal preferences.
Conclusion
The Alabama IVF decision did not occur in a vacuum. Every abortion ban, every personhood law, every appointment of a far-right judge, and every recent post-Dobbs case on reproductive freedom helped pave the way for this decision. Limits on abortion access both endanger the ability of people to decide if, when, and how to grow their families and restrict reproductive health decisions. These three cases are just a few of many that highlight how anti-abortion activists’ efforts to commandeer the judiciary are succeeding. Extreme judges are supplanting medical science with personal and political ideologies, at the expense of the health, safety, and rights of all Americans—and, now, their right to start a family.