1). “Alabama's Fetal Personhood Ruling: It goes way beyond IVF”, Feb 21, 2024, Jessica Valenti, Abortion Every Day, at < https://jessica.substack.com/
2). “Alabama court ruling on embryos: A sweeping attack on democratic rights and science”, Feb 22, 2024, Patrick Martin, World Socialist Web Site (WSWS), at < https://www.wsws.org/en/
3). “How Alabama’s frozen embryo decision is shaking the nation: What you need to know”, Feb 21, 2024, Nathaniel Weixel, The Hill, at < https://thehill.com/policy/
4). “There Is Only One Way for Biden to Fulfill His Promise to 'Restore Roe': If the president truly wants to protect reproductive rights, he’s going to have to do what he’s so far refused even to consider: expand the Supreme Court”, Feb 20, 2024, Elie Mystal, The Nation, at < https://www.thenation.com/
5). “There’s an Enormous, Impossible-to-Resolve Contradiction in Alabama’s Anti-IVF Ruling”, Feb 21, 2024, John Culhane, Slate, at < https://slate.com/news-and-
6). “Sam Alito Is to Blame for the Alabama Supreme Court’s Devastating Anti-IVF Ruling”, Feb 20, 2024, Courtney G. Joslin & Mary Ziegler, Slate, at < https://slate.com/news-and-
~~ recommended by dmorista ~~
Introduction by dmorista: Using blatant Theocratic Language the, far-right partisan hack dominated, Alabama Supreme Court has issued an outrageous decision. The Forced-birth movement in the U.S. has been trying to establish Fetal Personhood as a national standard for decades, with some limited success. The Alabama Supreme Court used a case, where the plaintiffs complained that their frozen fertilized embryos were destroyed, as the vehicle for this latest assault on Women's right to control their own bodies and fertility, and to plan their families. The main immediate effect is to cause several fertility clinics to quit offering in-vitro fertilization (IVF) services to patients, thus actually reducing the number of births. This is particlularly of upper-middle class people who can afford these expensive reproductive healthcare services. Since the court basically decided that destroying extra embryos is murder their ruling has made the provision of IVF impractical as every single embryo has now been declared to be an Extauterine Child in Alabama.
Some of the actual language of the decision, written by the Head Justice Tom Parker in a concurring opinion, is included here in an excerpt from “Alabama’s Supreme Court Rules IVF Embryos Are Children”, Feb 22, 2024, Joe Carter , The Gospel Coalition, at < https://www.
“In a concurring opinion, one justice wrote that this ruling provided an 'opportunity to examine the meaning of the term “sanctity of unborn life” within state law'. In explaining the meaning of the term, the justice cites Genesis 1:27, John Calvin, Petrus van Mastricht’s Theoretical-Practical Theology, and the Manhattan Declaration: A Call of Christian Conscience …. He concludes,
“ 'In summary, the theologically based view of the sanctity of life adopted by the People of Alabama encompasses the following: (1) God made every person in His image; (2) each person therefore has a value that far exceeds the ability of human beings to calculate; and (3) human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself. Section 36.06 recognizes that this is true of unborn human life no less than it is of all other human life—that even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.' ” (Emphasis added)
In Item 1)., “Alabama's Fetal Personhood Ruling: ….”, Jessica Valenti points out that in the 138 page decision (that is full of insane statements) the Justices actually called the Frozen Embryos “Extrauterine Children.” This is clearly the terminology of an unbelievable bunch of primitives sitting in Black Robes and pronoucing their insane strictures.
Item 2). “Alabama court ruling on embryos: ….” points out, while discussing the comments of Chief Justice Tom Parker and court's written decision:
“Interviewed on a podcast espousing the fascistic QAnon conspiracy theory, uploaded last Friday, the same day as the ruling, Parker declared, 'God created government' and that it’s 'heartbreaking' that 'we have let it go into the possession of others.' He then invoked the Seven Mountain Mandate, another fascistic trope calling for a takeover of seven key areas of American society: religion, education, family, government, economy, media, and entertainment/arts, while asserting that 'the holy spirit is there' when he takes action as chief justice. (Emphasis added)
“This type of religious claptrap boosts the so-called personhood movement, which seeks to establish legally that human life begins at fertilization. The first step was the definition of the fetus, at every stage of its development, as a human being. Now embryos stored in a laboratory, are described as 'little people,' according to Parker, and the lab as a 'cryogenic nursery,' according to the court opinion.”
Thus the megalomaniac Alabama Supreme Court Head justice, the Forced-birth Fanatic Tom Parker asserted in that interview, that he is the very voice of God when he makes judicial rulings.
Item 3)., “How Alabama’s frozen embryo decision ….” presents a summary of practical effects of the Alabama High Courts ruling. The article notes that:
“Alabama’s Supreme Court has ruled that frozen embryos are people, the first time a court has ever given rights and protections so early after conception.
“The ruling is limited to Alabama, but it has far-reaching potential and seems poised to open a new front in the fight over reproductive rights in the country.
“Alabama has one of the strictest abortion laws in the nation, and advocates and legal experts worry it could show a path forward for the “personhood” movement in other conservative states.”
Elie Mystal states in Item 4). “There Is Only One Way ….” that President Biden and other Democratic Leaders need expand the Supreme Court to end the ultra-reactionaries Amen Chorus at the peak of the judiciary. In the article Mystal, who was an early vocal advocate for President Biden using an executive order to open Federal Land in Red States as locations for Abortion and Reproductive Healthcare Clinics, writes that:
“Blaming Trump as the one true villain may feel satisfying—and it probably makes political sense—but it also allows Biden to avoid talking about the real problem and lets him and the senators running on his coattails sidestep the only real solution: expanding the Supreme Court. There is simply nothing the elected branches of government—the president and Congress—can do to 'restore Roe' without expanding the Supreme Court. Legislation and executive orders are of no use in the face of an extremist Republican judiciary willing to prohibit care and let people who are pregnant die.
“You cannot be for abortion rights but against the Supreme Court’s expansion anymore. The two are now inextricably linked. Biden and other establishment Democrats are essentially lying to you when they pretend that they can restore through legislation what the court took by fiat. Either we expand the Supreme Court and break the conservative supermajority, or we accept that women and pregnant people are second-class citizens who will lack equal access to healthcare for a generation.”
Mystal did not address the fact that with the current divided control of the legislative branch there is no chance that the Congress would ever pass the legislation needed to expand the membership of the Court. But Mystal's criticisms of the Biden administration are sharp and had the President taken decisive action, for instance issuing an executive order declaring a reproductive health care emergency and made federal land, guarded by federal troops, available to Abortion and Reproductive Healthcare providers that would have served to mobilize and motivate large numbers of voters. Instead Abortion and Reproductive Healthcare rights have been largely used as fundraising vehicles by the leadership of the Democratic Party.
Item 5),. “There’s an Enormous, ….” is a short legal analysis of the decision that is very critical of the convoluted and contradictory logic of the decision and the other opinions. The frozen embryos were accidentally dropped when a clinic patient removed them from a super cold freezer and injured their hand on the super cold surface while moving them. The article points out that:
“The court’s unprecedented decision was reached in a case alleging that embryos stored in a 'cryogenic nursery' were negligently secured, and that the facility was not properly monitored. The complaint states that the defendant, the Center for Reproductive Medicine, allowed a hospital patient to enter the fertility clinic, remove several embryos, and then drop them, causing their destruction. ….
“The court construed the state’s wrongful death statute to apply not only to embryos and fetuses in utero, but also to embryos at a 'few days' of gestation that had never been implanted in anyone. As the dissenting opinion points out, this bizarre conclusion misreads the state’s own wrongful death law. Worse, if applied consistently, the decision would fundamentally expand the reach of wrongful death statutes, with serious and unanticipated consequences.”
In Item 6)., “Sam Alito Is to Blame ….”, as well as in Item 1)., the authors note the extremist Fetal Personhood position carved out by the Alabama Supreme Court. Item 6 points out that: “The court declared that frozen embryos are 'children'—a term, the court explained, that applies 'without exception based on developmental stage, physical location, or any other ancillary characteristics.' ” (Emphasis added). In this case Justice Jay Marshall penned the insulting phrase “other ancillary characteristics”, expressing just how this bench full of retrograde fanatics refer to pregnant women, along with deep freezer containers.
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Alabama's Fetal Personhood Ruling
If you’re not already worried about fetal personhoo
If you’re not already worried about fetal personhood, you should be. In Alabama last week, the state Supreme Court ruled that embryos are “children,” and that families whose embryos were destroyed in an accident could sue for wrongful death. The justices decided that the law “applies to all unborn children, regardless of of their location.”
If “location” wasn’t enough to send you into a tailspin, consider this assertion from Justice Jay Mitchell:
“Unborn children are ‘children’…without exception based on developmental stage, physical location, or any other ancillary characteristics.”
ANCILLARY CHARACTERISTICS? Is that what they call women now? This has always been the danger of fetal personhood—it deprives pregnant people of their humanity.
Now, clearly this will have a huge impact on IVF. For example, discarding unused embryos is common during fertility treatments; Alabama doctors won’t be able to do this if embryos are characterized as “extrauterine children.” (Yes, that’s really what the justices called them.)
In a release, Barbara Collura, CEO of RESOLVE: The National Infertility Association, said the new legal framework “may make it impossible to offer services like IVF,” and that it “remains unclear what this decision means for families who currently have embryos stored at these clinics.” Collura also spoke to The Washington Post about the questions that the decision opens up for fertility clinics in Alabama:
“If a group of cells is a person, can you freeze them? Can you do genetic testing on them? What if you transfer an embryo to a person and she doesn’t get pregnant?”
In short: it’s going to be a mess for fertility doctors and patients. That said, this decision is not just about IVF—by further enshrining fetal personhood, Alabama is setting the stage for even more policies that punish pregnant people and strip away their rights.
Now, thanks to a 2018 ballot measure measure, Alabama already recognized fetal personhood —and the state has been punishing pregnant women accordingly. Alabama is notorious for targeting pregnant women accused of substance abuse, preemptively jailing them to ‘protect’ their fetuses, even though doing so has endangered women and their pregnancies.
And Alabama Attorney General Steve Marshall has been itching to punish women who get abortions and anyone who helps them. Early last year, Abortion, Every Day reported that he was planning on getting around the state’s prohibition on arresting abortion patients by charging anyone who used abortion medication with chemical endangerment.
Marshall has also argued that groups helping people leave the state for abortion are participating in a “criminal conspiracy,” and that even telling someone about an out-of-state clinic could be a crime:
“One cannot seriously doubt that the State can prevent a mobster from asking a hitman to kill a rival because the agreement occurred through spoken word. So too here for conspiracies to obtain an elective abortion.”
What’s more, Marshall made a legal argument last year that Alabama can restrict pregnant women’s travel—saying that if the state can prevent sex offenders from leaving, there’s a precedent to do the same with pregnant people who might want an abortion.
Since I reported on Marshall’s claim about travel, I’ve heard over and over again how I’m overly worried—that’s there’s no way Alabama could stop women from leaving the state because it’s straight up unconstitutional. But what the state Supreme Court’s ruling makes clear is that they believe fetal personhood trumps the law.
Robin Marty, Director of Operations for the West Alabama Women's Center and author of The New Handbook for a Post-Roe America, flagged this statement from Chief Justice Tom Parker:
“A good judge follows the Constitution instead of policy, except when the Constitution itself commands the judge to follow a certain policy. In these cases, that means upholding the sanctity of unborn life, including unborn life that exists outside the womb.”
Marty asks, “Does he mean that constitutional rights that are supposed to be inherent can be ignored if the outcome favors ‘unborn life’?” She points to the pregnant women who’ve been jailed, and Marshall’s statements about criminalizing those who help people leave the state for care: “What other constitutional rights are they planning to ignore in the name of protecting these so-called “children?”
Unfortunately, I think we know exactly what rights they’re planning on ignoring—they’ve been telling us for years one way or another. It will be all of them, and it won’t stop at Alabama.
As Mary Ziegler points out at CNN, “the goal is to slowly build the case that a fetus or even an embryo is a person for every purpose and circumstance.” That means abortion bans in every state, women punished for ending their pregnancies, and possible mandates that every frozen embryo be implanted.
There’s no way to overreact here: it’s as bad as it sounds. And while last week’s decision is of course about IVF, we can’t be fooled into thinking that’s the reason for the ruling. Anti-abortion activists, lawmakers and judges have a very clear plan they’re rolling out right now—and fetal personhood undergirds all of it.
Alabama activists and reproductive health workers need your help more than ever. To donate to the West Alabama Women's Center, click here.
Alabama court ruling on embryos: A sweeping attack on democratic rights and science
The ruling issued Friday by the Alabama state Supreme Court declaring a frozen embryo to be a person under state law is a sweeping attack on science, democratic rights and the constitutional separation of church and state. At the same time, the passive, indifferent response of the Biden administration to this ultra-right provocation demonstrates again that no section of the capitalist political elite, including the Democratic Party, will defend democratic rights. This vital political task must be taken up by the working class.
The state Supreme Court decision came in response to a civil suit for damages by parents whose embryos were accidentally destroyed at the laboratory where they had been stored for in vitro fertilization (IVF). A lower court had rejected the suit, ruling that an embryo was not an “unborn child” as defined in the state constitution. A referendum approved by Alabama voters in 2018 inserted a ban on abortion into the state constitution, which took effect after the US Supreme Court’s Dobbs decision in 2022 repealing Roe v. Wade.
The state’s highest court overruled the lower court decision, declaring in Orwellian language that fertilized embryos, clusters of protoplasm as small as 100 cells, were “extrauterine children,” entitled to the same protection under state law as a living, breathing child in a schoolroom. The ruling was outrageous both legally and constitutionally. It purported to use an 1872 state law allowing parents to sue over the death of a “minor child” and apply it to embryos created by IVF, a medical technique only developed in the 1970s, more than a century later.
This will have the practical effect of ending IVF in the state of Alabama, since doctors, clinics and parents would all fear being held liable for the destruction of embryos, a frequent by-product of the fertilization process, during which embryos with genetic abnormalities or those left over after successful implantation are generally discarded, or donated for research. In response to the ruling, the state’s largest hospital system, University of Alabama at Birmingham, halted all IVF procedures out of concern that “our patients and doctors could be prosecuted criminally.”
IVF is one of the most important medical advances of the past half-century, with millions of successful implantations leading to the birth of healthy children. In 2021, the last year with complete data, nearly 100,000 babies were born in the United States through the use of IVF. But even if some fertility clinics manage to survive in Alabama, the court’s decision will drastically increase the difficulty and expense of IVF, which is already $15,000 to $20,000, an enormous burden on working class parents who want children.
RESOLVE, the National Infertility Association, described the decision as “a terrifying development for the 1 in 6 people impacted by infertility who need in vitro fertilization to build their families.” And it warned, “this ruling has profound implications far beyond Alabama’s borders. Every American who wants or needs access to family building options like IVF should be deeply concerned about this development and the precedent it will set across the country.”
The Alabama ruling is a direct consequence of the US Supreme Court’s Dobbs decision, which overturned Roe v. Wade, the watershed 1973 Supreme Court decision that struck down anti-abortion laws across the country. Dobbs also called into question the earlier 1962 decision in Griswold v. Connecticut, which struck down a ban on contraception in Connecticut and for the first time acknowledged a constitutional right to privacy. The ruling asserted that there were spheres of life, including decisions on reproduction, into which no government, at state or federal level, could intrude. Now it is clear that ultra-right courts will not admit to any limitation on the repressive powers of the capitalist state.
Constitutionally, the ruling is in brazen defiance of the First Amendment, which begins with the words, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …” This prohibition was extended to the states by the 14th Amendment, which incorporated all the amendments that constitute the Bill of Rights. But the 138-page ruling is clearly based on Christian fundamentalist religious principles, which will now be imposed on the people of Alabama regardless of their own views. (Even in Alabama, the state with the highest percentage of evangelicals, that figure only comes to 49 percent, according to a recent report by Pew Research.)
The concurring opinion by Chief Justice Tom Parker openly quotes the Bible, including Genesis and the prophet Jeremiah, as the basis of his “legal” opinion. “Human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself,” Parker wrote. “Even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.”
Interviewed on a podcast espousing the fascistic QAnon conspiracy theory, uploaded last Friday, the same day as the ruling, Parker declared, “God created government,” and it’s “heartbreaking” that “we have let it go into the possession of others.” He then invoked the Seven Mountain Mandate, another fascistic trope calling for a takeover of seven key areas of American society: religion, education, family, government, economy, media, and entertainment/arts. He also asserted that “the holy spirit is there” when he takes action as chief justice.
This type of religious claptrap boosts the so-called personhood movement, which seeks to establish legally that human life begins at fertilization. The first step was the definition of the fetus, at every stage of its development, as a human being. Now embryos stored in a laboratory are described as “little people,” according to Parker, and the lab as a “cryogenic nursery,” according to the court opinion. Eleven states have so far adopted personhood legislation.
The Biden administration has not lifted a finger against the deluge of right-wing legislation which has followed the 2022 Dobbs decision, nor has the Democratic Party. They make use of the issue as a vote-getter in elections, appealing to the broad popular support for the right to abortion. But they do nothing in practice to defend it or any other democratic right.
The White House issued no statement on the Alabama ruling, and press spokesman Karine Jean-Pierre devoted only one paragraph to the subject at a press briefing conducted while Biden was making yet another trek through California, shaking the billionaire money tree for his campaign. He made remarks behind closed doors at the home of billionaire Hollywood Zionist Haim Saban Tuesday night, then spoke at several more fundraisers in the Bay Area on Wednesday.
This passivity is of a piece with Biden’s response to the open usurpation of federal authority by Texas Governor Greg Abbott, who has ordered the Texas National Guard and state police to turn back migrants at the US-Mexico border, defying the Constitution, which clearly makes the federal government supreme in all questions relating to borders and immigration.
Biden could federalize the National Guard, removing it from Abbott’s control, and bring other state governments to heel for defying the Constitution and attacking democratic rights. But he does nothing, still seeking bipartisan agreement with congressional Republicans on a huge increase in military spending for the war against Russia in Ukraine. In effect, he is allowing a vast area of the country, ruled by Republican governors and Republican-controlled state legislatures, to carry out the policies espoused by the fascist Republican presidential candidate, ex-President Donald Trump.
The Alabama ruling will resonate with religious fanatics opposed to the separation of church and state and anti-vaccine, anti-science demagogues like Robert F. Kennedy Jr. They feel they can run amok with the backing of the US Supreme Court and the spinelessness of the Democratic Party and the Biden administration.
But for the working class, the attack on abortion rights and other elements of reproductive freedom, such as in vitro fertilization and contraception, must be seen as a deadly threat to democratic rights, and workers must act accordingly.
This means establishing the political independence of the working class from the capitalist two-party system, whether represented by open fascists like Trump or supposedly liberal representatives of the corporate oligarchy (and supporters of genocide in Gaza) like Biden. The central question is to mobilize the strength of the working class in political struggle against the entire capitalist system and its political defenders, on the basis of a socialist program.
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How Alabama’s frozen embryo decision is shaking the nation: What you need to know
Alabama’s Supreme Court has ruled that frozen embryos are people, the first time a court has ever given rights and protections so early after conception.
The ruling is limited to Alabama, but it has far-reaching potential and seems poised to open a new front in the fight over reproductive rights in the country.
Alabama has one of the strictest abortion laws in the nation, and advocates and legal experts worry it could show a path forward for the “personhood” movement in other conservative states.
The White House on Tuesday condemned the decision as “exactly the type of chaos that we expected when the Supreme Court overturned Roe v. Wade and paved the way for politicians to dictate some of the most personal decisions families can make.”
Here’s what to know:
The ruling did not outlaw IVF
The Alabama Supreme Court’s decision found that embryos and fertilized eggs are considered children under the Alabama Wrongful Death of a Minor Act, even if they have not been implanted in a uterus.
“Unborn children are ‘children’ under the Act, without exception based on developmental stage, physical location, or any other ancillary characteristics,” Alabama Supreme Court Justice Jay Mitchell wrote for the majority.
Fertility experts said the new legal standard upends how in vitro fertilization (IVF) is practiced and left far more questions than answers. IVF in Alabama could become much more expensive and inaccessible.
But it is not illegal.
“The goal of IVF is to have a healthy pregnancy with a single baby, and that requires creating enough embryos [to] give the best chance of pregnancy,” said Betsy Campbell, chief engagement officer at RESOLVE: The National Infertility Association.
Campbell said there is no roadmap on how to proceed, but the ruling “definitely could make it impossible to perform IVF to the standard that has been honed over the last 40 years.”
In a concurring opinion that quoted heavily from the Bible, Chief Justice Tom Parker said IVF will look different but won’t end in Alabama.
Parker said it will be up to the courts to dictate how IVF can be performed in a way that won’t cause harm to unborn children and won’t incur the “wrath of an angry God.”
“Even before birth, all human beings have the image of God, and their lives cannot be destroyed without effacing his glory,” Parker wrote.
He suggested freezing embryos may no longer be allowed, and that doctors must create one embryo at a time and then implant it, no matter the quality.
At least one facility has already paused IVF treatment
The University of Alabama at Birmingham (UAB) health system — the largest in the state — said it is pausing all IVF treatments for fear of lawsuits and criminal prosecution.
“We are saddened that this will impact our patients’ attempt to have a baby through IVF, but we must evaluate the potential that our patients and our physicians could be prosecuted criminally or face punitive damages for following the standard of care for IVF treatments,” a spokesperson for the health system said.
Advocates said they have no answers for patients who may be wanting to start IVF, those who are midcycle or those with frozen embryos.
According to UAB, egg fertilization and embryo development is paused, but the process will continue up through egg retrieval.
During IVF, a patient self-administers hormone injections over about two to three weeks. An egg, or several eggs, is surgically removed from the ovary and fertilized within a laboratory environment. The fertilized egg, now considered an embryo, is then implanted into the uterus or frozen for later use.
Standard IVF practice is to also freeze any embryos that are not implanted right away. According to Johns Hopkins Medicine, embryos can be safely preserved for 10 years or longer.
In a brief filed prior to the decision, the Alabama Medical Association warned the court against creating an “enormous potential for civil liability” for fertility doctors.
Sean Tipton, chief advocacy and policy officer for the American Society for Reproductive Medicine (ASRM), said he expects more clinics to pause as lawyers try to figure out the full implications of the ruling.
“Modern fertility care will be unavailable to the people of Alabama, needlessly blocking them from building the families they want,” said ASRM President Paula Amato.
The ruling could boost the “fetal personhood” movement
According to the ruling, human life begins at fertilization, and unborn children are people under the state’s wrongful death laws.
Reproductive rights advocates have been concerned about access to IVF since the U.S. Supreme Court overturned Roe v. Wade and ended the constitutional right to an abortion.
Conservative states moved quickly to enact strict abortion bans from the moment of conception with limited exceptions, meaning the loss or discarding of embryos could be criminalized.
If Alabama law declares that unborn children deserve all the rights and protections of living children, other states may do the same. Abortion rights advocates said they have been afraid that such a ruling was the logical next step following the fall of Roe v. Wade.
“We’re likely to see conservative states and other conservative supreme courts adopting wholesale the same arguments that were made by the activists behind the decision in Alabama,” said Katie O’Connor, director of federal abortion policy at the National Women’s Law Center.
“Right now, we have a system where abortion is completely banned in 12 states. My fear is that this will be the case for IVF and other fertility care moving forward as well,” O’Connor said.
Lila Rose, founder of the anti-abortion group Live Action, called on other states and the federal government to follow suit.
“Laws that allow the homicide of children in the womb through abortion violence violate equal protection and are unconstitutional,” Rose said in a statement. “The Alabama Supreme Court decision should be applauded and used as a model of honest and prudential jurisprudence nationwide.”
There’s an effort to use the Alabama court’s standard in Florida
Liberty Counsel, a nonprofit evangelical Christian legal group, almost immediately filed a notice of supplemental authority with the Florida Supreme Court, arguing against a potential abortion ballot measure.
The potential amendment will take away “a protected right to life for the unborn,” the group argued.
“Every unborn life is a human being. Every human life begins as an embryo, and now the Alabama Supreme Court has upheld the decision of its citizenry that every unborn life should be protected, no matter their stage or location,” Liberty Counsel founder and Chair Mat Staver said in a statement.
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There Is Only One Way for Biden to Fulfill His Promise to “Restore Roe”
If the president truly wants to protect reproductive rights, he’s going to have to do what he’s so far refused even to consider: expand the Supreme Court.
At a campaign rally in Manassas, Va., on the night that Donald Trump effectively locked up the Republican Party’s nomination by winning the New Hampshire primary, President Joe Biden and Vice President Kamala Harris kicked off their reelection campaign. They focused on a single issue: abortion rights. The two incumbents, and their spouses, gave speeches about the need to “restore Roe” and put the blame for its revocation squarely at Trump’s feet. “Let there be no mistake,” Biden said. “The person most responsible for taking away this freedom in America is Donald Trump. The reason women are being forced to travel across state lines for healthcare is Donald Trump…. The reason their fundamental right has been stripped away is Donald Trump.”
Biden’s decision to make abortion rights central to his campaign is unquestionably right. Trump, who can’t help putting his name on things like a boy pissing his initials in the snow, is happy to claim responsibility for the tragedies and human rights violations we’ve seen since the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization. If he’s elected, Trump might sign a national abortion ban passed by a Republican Congress. Biden would not. That is all the information I need to secure my vote for Biden this November.
Yet Biden’s insistence on blaming Trump for Dobbs, while empirically true, is also fundamentally misleading. The actual reason we’ve lost access to reproductive healthcare in this country is the Supreme Court. Yes, Trump nominated three of the six justices who voted to overturn Roe v. Wade, but literally any Republican who was president during the past 30 years would have done the same. I can prove that easily, because the three justices who joined the Trump ones in Dobbs were, in fact, appointed by different Republican presidents—and that includes the one who actually wrote the decision overturning Roe: Samuel Alito, a George W. Bush appointee.
Crediting Trump with taking away abortion rights is like saying George H.W. Bush “won the cold war.” Trump’s not the guy who orchestrated this: he’s just the simpleton who was in charge when the wall came down.
Blaming Trump as the one true villain may feel satisfying—and it probably makes political sense—but it also allows Biden to avoid talking about the real problem and lets him and the senators running on his coattails sidestep the only real solution: expanding the Supreme Court. There is simply nothing the elected branches of government—the president and Congress—can do to “restore Roe” without expanding the Supreme Court. Legislation and executive orders are of no use in the face of an extremist Republican judiciary willing to prohibit care and let people who are pregnant die.
You cannot be for abortion rights but against the Supreme Court’s expansion anymore. The two are now inextricably linked. Biden and other establishment Democrats are essentially lying to you when they pretend that they can restore through legislation what the court took by fiat. Either we expand the Supreme Court and break the conservative supermajority, or we accept that women and pregnant people are second-class citizens who will lack equal access to healthcare for a generation. That is the world we live in, and the people who deny it are selling you a fantasy.
The Biden administration’s new “actions” to protect reproductive rights—offered on the 51st anniversary of the Roe decision—show just how useless executive power is on this issue as long as conservatives control the courts. The administration announced plans to expand access to contraceptives under the Affordable Care Act, which is good. But the announcement didn’t include plans to expand access to mifepristone, one of the key drugs in the most widely used method for terminating pregnancies. And that’s because the Supreme Court is poised to make a major ruling on this pill, which would supersede any access to the medication that Biden might like to provide.
Biden also announced a plan to “educate” patients and healthcare providers about their rights under the Emergency Medical Treatment and Labor Act, which mandates that hospitals and emergency rooms provide lifesaving care regardless of a person’s insurance or ability to pay. Biden says that EMTALA covers abortions in situations where the mother’s life is at risk, but states like Idaho and Texas say it doesn’t. The two states have sued the Biden administration, and the Supreme Court recently agreed to hear Idaho’s case.
Biden can “educate” patients and doctors all he wants, but who is going to tell Idaho and Texas that they’re wrong—Congress, which wrote the law? The president, who enforces it? No, the Supreme Court will decide whether Idaho and Texas can jail doctors who attempt to provide lifesaving care in emergency rooms, while the Biden administration sits back and accepts the ruling of six conservative extremists that nobody voted for.
Both the mifepristone case and the EMTALA case will likely be decided by the Supreme Court in June, before the presidential election. If the court moves to further restrict reproductive rights, you’ll probably hear a lot about it at the Democratic National Convention in Chicago this August. But what you won’t hear are promises from the Democratic candidates to actually fix the problem. They’ll cry and moan and blame Trump and the MAGA Republicans, and they’ll promise “action” if they’re elected to office. But they will avoid talking about expanding the Supreme Court, which is the one action that can be taken to stop the torrent of anti-abortion rulings being issued by this court.
Look, I get that Trump is the easier target. He’s the perfect poster boy for the misogyny and filth that animate conservative rulings against reproductive rights. And I get that in our low-information, attention-deficient, celebrity-obsessed society, pretending that a president can single-handedly “restore Roe” is perhaps a necessary fiction. But abortion rights and access to lifesaving reproductive care will never again be allowed in the United States as long as conservative justices are allowed to control the Supreme Court.
And conservative justices will control the court, for the rest of my life and yours, as long as the Democrats refuse to commit to a platform of court expansion. There are simply no other options. The electoral binary is not “Biden” or “Trump”; it’s “expand the court” or “let pregnant people die.”
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There’s an Enormous, Impossible-to-Resolve Contradiction in Alabama’s Anti-IVF Ruling
The Alabama Supreme Court ruled on Friday that frozen embryos are people. If the court follows its own reasoning to its logical conclusion, in vitro fertilization will end in that state, because these “children” cannot be destroyed by anyone—including not only the clinics, but even those who decide to store their embryos with them.
The court’s unprecedented decision was reached in a case alleging that embryos stored in a “cryogenic nursery” were negligently secured, and that the facility was not properly monitored. The complaint states that the defendant, the Center for Reproductive Medicine, allowed a hospital patient to enter the fertility clinic, remove several embryos, and then drop them, causing their destruction. The plaintiffs are former patients at the clinic who had become parents through successful implantation of other embryos they had helped to create, but who had opted to leave the remaining ones in cold storage. Those embryos are the ones the hospital patient allegedly dropped.
The court construed the state’s wrongful death statute to apply not only to embryos and fetuses in utero, but also to embryos at a “few days” of gestation that had never been implanted in anyone. As the dissenting opinion points out, this bizarre conclusion misreads the state’s own wrongful death law. Worse, if applied consistently, the decision would fundamentally expand the reach of wrongful death statutes, with serious and unanticipated consequences.
A short history of wrongful death laws will help situate this discussion. These laws have always occupied a strange place in tort law. For reasons that remain speculative and unclear, until the latter part of the 19th century the civil law provided no remedy against a defendant whose wrongful conduct caused the death of another person. Causing serious injury, by contrast, could lead to a negligence claim, and a substantial award of damages, in favor of the injured plaintiff. You read that right: It was better, financially speaking, to cause someone’s death than to cause them serious injury.
This anomalous state of affairs changed during the late 19th century. But it was state legislatures, not common law courts, that brought about this much-needed reform. Thus, unlike most of tort law, wrongful death cases depend on statutory interpretation rather than on judge-made, common law evolution. Moreover, they have always differed from personal injury cases in one crucial way: While the injured party is the one who recovers damages in a negligence case, the damages in a wrongful death cases are awarded to surviving family members, and are primarily based on the financial losses they endure because of the death. From the beginning, they were mostly brought by surviving wives and children who were left without their principal means of financial support. Understanding the purposes of wrongful death law turns out to be crucial to seeing one of the reasons why the Alabama court’s decision is so wrongheaded.
For a number of reasons, wrongful death cases have long been an imperfect vehicle for compensating parents whose children are negligently killed. Since the losses generally center around the financial impact of the death, kids are (with rare exceptions) not exactly income generators for the family. Quite the opposite; financially speaking, they are a drain, not an asset. Therefore, some statutes now expressly permit recovery for loss of the companionship of a child, while some courts have generously interpreted more limited language in their state statutes to achieve that same result. Of course, such damages are difficult to assess.
The difficulties of proving loss multiply in several ways when the question moves to whether a family can recover damages for the death of “unborn children,” to use the Alabama’s court repeated description. And, like other wrongful death statutes enacted more than a century ago, Alabama’s made no provision for zygotes, embryos, or fetuses. The law, enacted in 1872, provides for recovery for the “death of a minor child.” As the dissent points out, a “child” is a person who is born, and whose life is then ended by someone’s wrongful act. And as the dissent also demonstrates, Alabama courts consistently applied that definition in a series of cases spanning many decades. In recent years, though, the court “discovered” that the language of the wrongful death law now applied to fetuses—and at any stage of development.
In fairness to the Alabama court, other states have also been inconsistent in these cases. Many courts now allow wrongful death claims where the fetus was “viable.” Whatever the problems with the viability standard in abortion cases, it makes sense in wrongful death suits. If fetal development has progressed to the point where survival outside the womb is possible, it’s easier to argue that an independent life was ended. Push too far back in embryonic development, though, and the argument weakens quickly. Many courts still balk at allowing wrongful death claims in these cases, in part because it’s impossible to determine whether the pregnancy would have resulted in the birth of a live child. (Consider the prevalence of miscarriage during the first trimester.) Too, there are no actual economic damages, and even the loss of companionship is entirely speculative. Nonetheless, a few courts have permitted recovery in these cases.
But until this Alabama decision, no court had permitted a wrongful death claim in the case of a negligently destroyed frozen embryo, even though the theory has been tried in other states. No conclusion other than rejecting liability is tenable. Consider the facts in the very case the court decided. As the court summed up the defendant’s position during oral argument, the three sets of parents had contracted as follows: to “destroy any embryos that had remained frozen longer than five years,” or to donate them to researchers whose projects would “result in the destruction of the embryos,” or to allow any “abnormal embryos” to be experimented on and then “discarded.” This language, by the way, comes from the majority decision, not from the dissent. But the majority allowed the case to move forward anyway, saying that these issues could be resolved at a later point in the litigation.
That makes no sense at all. The agreements the courts referred to are quite typical, and they underscore the obvious point that even the “parents” of these embryos think of them as their property, to be negotiated about and treated as any other property they own and can dispose of as they wish. There’s an argument to be made against allowing the creation, implantation, and destruction of embryos—but that’s an argument for bioethicists concerned about what they view as commodification of human beings, not an excuse to warp the wrongful death law to convert the embryos into something they plainly are not.
There are two possible consequences here, and we should hope that the illogical one prevails. If the court believes that these embryos are in fact “unborn children” protected by the wrongful death law, then none of these alleged agreements are legally valid under standard principles of contract law. To state the obvious: You can’t contract for the death of human beings. But perhaps the court will ignore or try to sidestep this embarrassing point when the case returns to the justices, and somehow try to square the circle by holding that these embryos are somehow not yet “people” when such agreements are initially made. (I said it didn’t make sense.) Meanwhile, what is a trial court supposed to do with this inconsistency in the meantime, now that the case has been sent back for further proceedings?
The more cataclysmic outcome would ensue if the court follows its own logic: If these embryos are in fact “people,” then their destruction would be, in a word, murder, as that term is commonly understood: The intentional taking of another human life. The court dips a toe into this whirlpool by stating that the patient “killed” (rather than “destroyed”) the embryos. Currently, those “killings” could not be prosecuted under the state’s criminal law (which does consider killing a woman while she’s pregnant a double homicide), but they would certainly amount to causing a “wrongful death,” and the court would then need to appoint a guardian to represent the “interests” of the wrongfully destroyed embryo. The logic of this decision would be that the wrongful death suit would then be appropriate against both the clinic and those who decided to freeze their embryos. It’s hard to say whether the court will go this far, but that’s where the analysis leads. At least for now, both of those groups should be worried about suits brought on behalf of these embryos—which would likely come from the very same groups that led the charge against the right to terminate a pregnancy.
Even if the court doesn’t go that far, IVF treatment will effectively and soon become financially out of reach for some people. No clinic will freeze unused embryos—at least not without a strong waiver of liability, the enforceability of which is now unclear. And for fear that the waiver will be declared unenforceable, clinics will beef up security, and pass that cost on to hopeful future parents.
I’m not even done. Yet another problem is that the categories of damages that are awarded in wrongful death laws simply do not fit the frozen embryo cases. Financial loss to surviving family members? Forget that. And loss of companionship? Here’s the chain of causation that would be needed for that to work: First, the couple would have to show that they planned to implant the embryos at some future date. Even if that could be established, they’d then have to show that: 1) the embryos would have been successfully implanted; 2) they were viable; and 3) they would have survived the pregnancy and been born alive. Given the low percentage of success of IVF treatments, such a combination of showings would border on the impossible, and vividly illustrates why no other court agrees with Alabama.
I’m not arguing that these couples should be without remedy. But that remedy lies in negligence, for the loss of property. And evaluating the cost of that loss need not be limited to out-of-pocket losses. Alabama is among a number of states that allow recovery for the “true value” of the lost property to the plaintiffs. The principle was established in a 1918 case involving the wrongful destruction of the plaintiff’s photographs, and is routinely invoked in cases involving pets, which are what I might call “property-plus.” The same approach could lead to a fair outcome here: If the negligence case is proven, the defendants should be made to pay, even if the embryos would have been destroyed in any case. It’s one thing to imagine them going to science; it’s quite another to imagine them dashed to the floor, an episode likely to cause people like these plaintiffs to experience a true sense of loss. These embryos are property, legally speaking, but a lot can still be done to protect real interests. Twisting wrongful death law into a pretzel isn’t the way to do that.
I would like to thank my colleague, Brendan Conner, who is an assistant professor of law at Delaware Law School , and my torts students for their helpful insights.
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Sam Alito Is to Blame for the Alabama Supreme Court’s Devastating Anti-IVF Ruling
In June 2022, when the Supreme Court overturned Roe v. Wade, Justice Samuel Alito promised that other reproductive rights were not in danger. True, Clarence Thomas admitted that he was coming for the right to contraception, and the Supreme Court’s rationale—that only rights recognized in 1868 qualified as deeply rooted in the nation’s history and tradition and deserving of recognition—seemed to mean that other key precedents would have to be overruled. But Alito promised that other rights wouldn’t change. Abortion, he proclaimed, was different: “It destroys … an unborn human being.”
A decision issued last Friday by the Alabama Supreme Court is a reminder that the effects of Dobbs are not limited to restricting access to abortion. Dobbs is also limiting the ability of women to make decisions about how and when they have children in many other ways—including for those who want to become parents.
The Alabama ruling began after three couples went to an Alabama fertility clinic to pursue in vitro fertilization. IVF is the process in which a human egg is fertilized with sperm outside the body. As part of the IVF process, excess embryos are generally created and often stored, sometimes indefinitely. It is estimated that there are 1.5 million frozen embryos. Like many others, the plaintiff couples in Alabama chose to have their excess embryos frozen and stored at their clinic—which the court provocatively described as a “cryogenic nursery.” Later, in 2020, a patient at a hospital connected to the clinic got access to some of the frozen embryos and dropped them, resulting in their destruction. The three couples sued, arguing that the clinic breached its contract with them and was negligent in the storage and monitoring of the embryos. Their main theory was more explosive: The embryos counted as “children” or “persons” under the state’s wrongful death law.
The clinic had claimed that embryos could not be “persons” not only because they hadn’t been born but because they hadn’t even transferred to a uterus. The state Supreme Court disagreed. The court declared that frozen embryos are “children”—a term, the court explained, that applies “without exception based on developmental stage, physical location, or any other ancillary characteristics.” The court observed that its ruling set the stage for bigger questions, such as “the application of the 14th Amendment to the United States Constitution” to embryos and fetuses—an outcome that could result in prohibiting almost all abortions.
But even as it stands, the fallout from this decision will be significant. One direct target will be on those who want access to fertility care. The likely outcome of the ruling—unless it is overturned by the legislature—is that fertility care in Alabama will be drastically curtailed, if not halted altogether. Like we’re seeing in the context of pregnancy and miscarriage care in states that ban most abortions, the potential legal risks may now be so great that physicians in Alabama will simply stop providing the care.
The number of people affected will be significant. According to a recent study published in Reproductive Health, roughly 15 percent of couples in the U.S. experience infertility. This group cuts across demographic groups. Women who delay pregnancy are at increased risk of experiencing infertility. Black women are at disproportionate risk of experiencing infertility. Single women who lack male partners are also in this group. Some of these women turn to assisted reproduction, including IVF, to grow their families. People in Alabama may no longer have this option. And the ripple effects will likely extend beyond the state’s borders. Especially in other states with sweeping abortion bans, and where the state has considered or is considering fetal personhood laws, fertility care providers may now think twice about continuing to provide that care.
IVF in Alabama, and maybe beyond, will be a casualty of the American war on the right to choose abortion. Since the 1960s, the anti-abortion movement has fought for fetal personhood: the idea that the word person in the 14th Amendment applies the moment an egg is fertilized. At first, in the 1960s, abortion opponents used the idea of personhood to argue against the reform of criminal laws. Then, after Roe, the movement campaigned for the so-called Human Life Amendment to write fetal personhood into the U.S. Constitution. None of that worked, and no surprise: Then, as now, most Americans opposed sweeping bans on abortion. So abortion opponents moved on to Plan B: writing the idea of the fetus as a person into other areas of the law, like the kind of wrongful-death statute at issue in the Alabama case.
Like access to abortion, having access to IVF enables people to make decisions about their reproductive lives—to control whether and when to get pregnant. As the Supreme Court previously noted, women’s ability to “participate equally in the economic and social life of the Nation” is dependent on “their ability to control their reproductive lives.”
The Alabama ruling is a reminder that, whatever Alito might have said in Dobbs, the attack on abortion rights was always going to put women’s ability to make other reproductive decisions in jeopardy, and IVF is just the beginning.
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