Opinion: How Alabama's IVF ruling unmasks the hypocrisy of antiabortion zealots

Instruments working on subtances in a Petri dish

March 3, 2024 3 AM PT

We don’t know whether former Vice President Mike Pence and his wife, Karen, had any leftover embryos after they availed themselves of the advanced reproductive technology known as in vitro fertilization to become the parents of their three children, who are now adults.

In November 2022, after the Supreme Court overturned the federal right to abortion, the virulently antiabortion Pence told CBS’ “Face the Nation” that the couple had struggled with infertility for years and that he would never dream of trying to stop others from using such technology to have kids.

Opinion Columnist

Robin Abcarian

Read more from Robin Abcarian

For the record:

2:41 p.m. March 7, 2024An earlier version of this story incorrectly named the law school at Northern Kentucky University. It is the Salmon P. Chase College of Law, not the Samuel P. Chase College of Law.

“I fully support fertility treatments, and I think they deserve the protection of the law,” said Pence, who also avidly supports fetal personhood, that is, the idea that every fertilized egg is entitled to full protection under the law.

Well, guess what? You can’t do both.

Last month, the Alabama Supreme Court ruled 8 to 1 that under the state’s Wrongful Death of a Minor Act, frozen embryos are people, putting a harsh spotlight on the hypocrisy that drives so much of the fight against abortion. Three IVF clinics in the state quickly announced they were putting their programs on hold.

“A lot of state legislators right now are scratching their heads — whether you’re a Republican, Democrat, pro-life, pro-choice — and saying, ‘What are our laws on IVF?’ ” Billy Valentine, the vice president of political affairs at Susan B. Anthony Pro-Life America, told Politico. “For us, it’s about making sure that IVF is available but that these embryos aren’t needlessly discarded.”

Hoping to have it both ways, the Alabama Legislature rushed to pass a law that shields patients and healthcare providers from prosecutions and lawsuits related to IVF services.

A similar effort is taking place in Congress, albeit with a different motivation. After Roe vs. Wade was overturned, Democratic Sens. Tammy Duckworth of Illinois and Patty Murray of Washington introduced legislation that would provide federal protections for fertility treatments. They feared abortion bans would lead to an assault on IVF, in which couples routinely create more embryos than they can use and then discard them or donate them to research. The bill would protect doctors and insurance companies from prosecution and give parents the right to determine the fate of their embryos.

Republicans blocked the measure again last week, prompting Murray to accuse them of hypocrisy.

“It’s been incredible to watch Republicans now scramble to suddenly support IVF while many of these same Republicans are literally, right now, co-sponsors of legislation that would enshrine fetal personhood,” Murray told reporters. “You cannot support IVF and support fetal personhood laws. They are fundamentally incompatible. You are not fooling anyone.”

Last year, Judith Daar, dean of the Northern Kentucky University Salmon P. Chase College of Law, published a prescient article in the Journal of Law, Medicine and Ethics, speculating on the effect that outlawing abortion would have on practices such as IVF, in which embryos are routinely frozen, tested for genetic anomalies, discarded or selectively aborted in the case of multiple pregnancies after implantation.

“Applied to IVF,” wrote Daar, who studies the legal and ethical issues raised by advanced reproductive technologies, “embryo discard could be considered homicide, while cryopreservation could amount to some kind of battery on the frozen embryo.”

Once a couple is finished with the IVF process, she told me Thursday, any decision about what to do with the remaining embryos — donation to research, “compassionate transfer” to another couple, destruction — “could raise a claim that there was mistreatment, wrongful handling, wrongful death. It would be up to the state to decide if it wants to bring criminal charges.”

Pre-implantation genetic testing, in particular, presents a dilemma in states where embryos are considered people, she said. “Would it ever be in the best interest of an embryo to perform a test, the very point of which is to discard unhealthy embryos? Would you test a person for the purpose of ending their life?”

More than 2% of births in the United States each year are the result of advanced technology like IVF. Last year, Daar said, that amounted to about 100,000 babies. Since 1978, when the first IVF baby was born, the count is now well over 8 million. It is estimated that between 1 million and 5 million frozen embryos live in suspended animation in the United States, which, unlike some other countries, does not limit the number of years embryos may be stored.

Although the Alabama Supreme Court did not specifically address a couple’s choice to destroy frozen embryos, its ruling has uncorked a potent dilemma that antiabortion states will have to face: How can lawmakers criminalize abortion while allowing, or turning a blind eye to, the destruction of “people” conceived through IVF?

This a phenomenon Daar calls “IVF exceptionalism.”

IVF, which is not covered by most insurance plans, is very expensive. A single cycle, which includes stimulating ovaries, retrieving eggs, fertilization and implantation, can cost between $15,000 and $30,000, Forbes reported last year. A majority of women go through more than one cycle.

“The simple fact,” Daar wrote, “is the majority of patients who seek IVF are of higher socioeconomic status and white; the majority of patients who seek abortion are of lower socioeconomic status and people of color.”

Indeed.

To put it in the crudest terms: For antiabortion zealots who support advanced reproductive technologies, “killing babies” in the pursuit of parenthood is entirely justifiable, but “killing babies” to avoid parenthood is murder.

Are we even the least bit surprised?

@robinkabcarian