They're coming for birth control next
Banning IVF is a natural result of anti-choice zealots running the GOP, and they won't stop there.
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Earlier this month, the Alabama Supreme Court issued an opinion, complete with a wildly theocratic concurrence from Chief Justice Thomas Parker, that functionally outlawed in vitro fertilization (IVF) in the state.
In the wake of the ruling, Republicans have tried to unwind this mess, with the Alabama legislature considering passing a law to ensure IVF access and Donald Trump coming out to say he strongly supports access to IVF.
All of this is a bit of rearranging deck chairs on the Titanic, as the damage is done. The entire spectacle was inevitable once the GOP gave the party over to anti-choice zealots decades ago.
In brief, the reason the Alabama Supreme Court’s opinion implicates and outlaws IVF is that the state has a Wrongful Death of a Minor statute, and the court decided this applies to “all unborn children, without limitation.” But there’s no language in the statute that says this. Rather, it’s just that over the last 15 years, the Alabama Supreme Court has issued a series of rulings saying that the undefined term “minor child” in the statute can be stretched to “unborn children” regardless of what state of development the embryo is at. Once the court created such an expansive definition, the decision that frozen embryos are people was inescapable.
To be fair, though, the Alabama Supreme Court is entirely made up of conservative Republicans, they were a bit hamstrung in their decision. Alabama’s state constitution states that “it is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate." But that doesn’t necessarily mean the court was required to, as it did here, extend that “unborn child” definition to what it calls “extrauterine children” — embryos frozen by people pursuing IVF.
That IVF is even controversial is an indictment of the GOP
An IVF cycle is designed to produce multiple eggs that can be retrieved in one procedure. The more eggs produced, the greater the likelihood of a viable embryo that can be implanted, hopefully resulting in a pregnancy. Because of this, multiple embryos often remain, and people freeze those for several reasons. People may use them if the first attempt at implantation doesn’t work, thus avoiding multiple egg retrieval cycles. They may save them for later if they decide to have more children. They may donate them to other people struggling with fertility issues.
For people not saddled with the misguided anti-choice belief that a tiny clump of cells is the same as a person, this is a non-controversial process. It enhances the chance of pregnancy and allows people to plan for future children without undergoing multiple invasive egg retrieval cycles. But if one subscribes to the notion of fetal personhood — that a fetus is quite literally a person, with all the attendant privileges that confers — then those frozen embryos are the same as babies.
This is, of course, a religious, not scientific belief. Chief Justice Parker, in his concurring opinion, made clear that his vote, at least, stems directly from his religious beliefs rather than being grounded in the law. Citing Augustine, Thomas Aquinas, John Calvin, the Ten Commandments, and the King James Bible, Parker concludes that “even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.”
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Notably, none of those things are legal precedent. Indeed, in a country founded on the separation of church and state, they shouldn’t inform a court holding. However, since religious conservatives dominate the US Supreme Court, that separation has largely collapsed. This has emboldened conservative litigants and conservative state and federal judges to take ever more anti-choice stances.
Reproductive health activists have been sounding the alarm about the anti-choice attacks on IVF for years, particularly in the wake of the Dobbs decision overturning Roe v. Wade. At least two prominent anti-choice groups, Americans United for Life and Students for Life, have railed against IVF. The chief legal officer for Americans United for Life, Steve Aden, called IVF “eugenics” and said that IVF created “embryonic human beings” that were destroyed in the process. Students for Life called IVF “damaging and destructive.”
These same anti-choice groups also hate birth control, and the Dobbs decision paved the way for them to mount a theocratic attack on it too. Christopher Rufo, who ginned up a panic over benign diversity initiatives and helped force out the first Black president of Harvard, Claudine Gay, has already telegraphed that this is his next attack.
Over on Elon Musk’s increasingly Nazi-fied social media site, X, Rufo is spewing rhetoric about how “the family structure disintegrated precisely as access to birth control proliferated” and that recreational sex is bad and leads to single-mother households.
Rufo isn’t alone. The Heritage Foundation, which is also busy with a blueprint for a second Trump presidency that would destroy the administrative state and whose leader is still pushing the big lie that Trump won the 2020 election, has also called for the end of birth control. Also over on X, Heritage’s official account posted last year that “a good place to start would be a feminist movement against the pill and … returning the consequentiality to sex.”
And there you have it. Religious conservatives are calling for a return to a world where sex isn’t recreational or for pleasure but is instead fraught with consequences — namely, pregnancies that can’t be terminated even when the pregnant person’s life is in danger. To do this, however, they would need to succeed in getting the Supreme Court to overturn Griswold v. Connecticut, the 1965 case that invalidated restrictions on birth control.
More importantly, Griswold affirmed the constitutional right to privacy. It’s that right that not only underpinned the right to an abortion in Roe but also underpins other cases related to the rights of Americans to pursue sexual and marital relationships without government interference. In Lawrence v. Texas, decided in 2003, the Supreme Court relied upon Griswold to throw out laws that criminalized sexual contact between members of the same sex. Twelve years later, that same reasoning was used in Obergefell v. Hodges to affirm a constitutional right to same-sex marriage.
Justice Clarence Thomas hates the right to privacy and has made no secret he wants it gone. In his concurring opinion in Dobbs, he called on the Court to “reconsider” all these cases and overrule them as “demonstrably erroneous.” Justice Samuel Alito has been a bit more evasive about this, writing in Dobbs that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” However, Alito’s Dobbs opinion is littered with references to “fetal life” and how abortion destroys an “unborn human being.” As recently as last week, Alito wrote a statement decrying Obergefell because he doesn’t think it’s fair that people who are bigots about same-sex marriage ever get called bigots.
It isn’t just Thomas and Alito. During her confirmation hearing, Justice Amy Coney Barrett refused to say whether she thought Griswold, Lawrence, and Obergefell were rightly decided. In 2012, she signed an open letter stating that the Affordable Care Act’s required coverage for birth control was an assault on religious liberty. Similarly, Justice Brett Kavanaugh, in his confirmation hearing, also wouldn’t say whether Griswold was correctly decided. Justice Neil Gorsuch did the same.
That makes five likely votes — with Chief Justice John Roberts a possible sixth — for a rollback of privacy rights in America. With that pillar of law gone, states would be free to outlaw same-sex marriage, get rid of birth control, and impose any other theocratic conditions they’d like.
The dog that caught the car
Right now, Republicans are scrambling to undo the damage they’ve wrought, realizing that an anti-IVF stance is alienating to most. Last year, the Pew Research Center found that 42 percent of adults had used fertility treatments or knew someone who had. From 1996 to 2018, over 1 million babies were born as a result of fertility treatments. Mike Pence has spoken publicly about how he and his wife used IVF and that the procedure should be protected.
In Alabama, Republican legislators are planning to introduce a law that would say the embryo isn’t a person until implanted in a uterus. But legislation doesn’t trump the state constitution, which means the Alabama courts could throw out any law they deem contrary to their fetal personhood interpretation of the constitution. Several Alabama fertility clinics have stopped IVF services, citing the legal risk. The state’s GOP attorney general, Steve Marshall, said he wouldn’t use the decision to prosecute IVF providers or people seeking IVF treatment, but that’s a slender reed to rely upon. What provider or patient wants to rely upon the vague assurances of the attorney general rather than a law that protects access?
And it isn’t just IVF. Elected officials in states that have banned abortion have openly mocked those people who have come forward with horror stories of being refused abortions even as they developed sepsis or faced the possibility of permanent future infertility. Doctors have no clear guidance on when they can terminate a pregnancy to save the life of the pregnant person, leaving them vulnerable to prosecution. People who currently have frozen embryos have no idea what to do with them, and nor do clinics. If the hardest-line anti-choice people get their way, access to birth control will become as spotty and politicized as access to abortion is now.
This type of amorphous fear is a feature, not a bug, of the post-Dobbs landscape. When the entire spectrum of reproductive health is murky, and the threat of prosecution looms large, doctors won’t perform abortions or IVF treatments. Patients won’t seek abortions even as their health deteriorates to a level that could result in death. People who can get pregnant will have their lives narrowed to nearly nothing as they try to sidestep the landmines of an ever-shifting jurisprudence over their bodies.
And that’s exactly the way conservatives want it, no matter their current feeble attempts to get out from under an IVF disaster of their own making. The GOP made common cause with the worst people in the country on this issue, and now we’re all stuck with the consequences.
That’s it for today
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We’ll be back with more Thursday. Until then, thanks for reading.
Excellent piece.
Privacy is next.
Noted Heritage Foundation- desire to stop recreational sex. Consequentiality of sex has to return, but consequentiality of gun violence for children doesn’t matter. Hardly pro-life. Prurience matters only to R’s.
Consequential sex for who? For women. There’s never consequential sex for men because they can’t get pregnant. They can freely fuck whomever they please whenever they please. Women who get pregnant outside of marriage are slovenly sluts who get what they deserve for not keeping their legs shut.
The ivf exception in AL is written to expire next year. After the election. Students for Life tried co-opting the language of the environmental movement saying bc poisons our waterways. These people think IUD’s, emergency contraception (Plan B), & some other forms of hormonal bc are the same as abortion.
They want to trap us. Trap us in dependency. Trap us with children we can’t care for. Trap us in abuse. To fulfill some bs fantasy world of long ago that never existed.