Alabama Supreme Court Sparks IVF Debate

From the The Morning Dispatch on The Dispatch

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Quick Hits: Today’s Top Stories

• The Hungarian Parliament on Monday voted overwhelmingly—188 to 6—in favor of Sweden joining NATO, clearing the final obstacle preventing the Nordic country’s accession to the military alliance after months of delay by Hungarian Prime Minister Viktor Orbán. “The parliaments of all NATO member states have now voted in favor of Swedish accession to NATO,” Swedish Prime Minister Ulf Kristersson said yesterday. “Sweden stands ready to shoulder its responsibility for Euro-Atlantic security.” An official flag-raising ceremony to signify Sweden’s accession is expected to take place at NATO headquarters in Brussels later this week.

• The Palestinian Authority’s prime minister, Mohammad Shtayyeh, announced the resignation of his government on Monday, following efforts by the U.S. and its Arab partners, including Saudi Arabia, to reform the body they hope will govern the Gaza Strip after the war ends. Palestinian Authority President Mahmoud Abbas, who will remain in office, accepted Shtayyeh’s resignation and is expected to replace him with Mohammad Mustafa, who currently heads the Palestine Investment Fund. The move fell short of the changes outlined by the U.S. for the West Bank’s current governing body, which included Abbas’ resignation and granting the prime minister more power.

• Aaron Bushnell, a 25-year-old active-duty U.S. Air Force member, set himself on fire in front of the Israeli embassy in Washington, D.C., on Sunday in protest of the ongoing war in Gaza. Bushnell, who live-streamed the self-immolation while repeatedly chanting “Free Palestine,” died from his injuries Sunday night. Bushnell has been celebrated as a martyr by many prominent far-left voices, including independent presidential candidate Cornel West.

• Maria Pevchikh, a close ally of Alexei Navalny, claimed Monday that the Russian opposition leader’s death in a penal colony earlier this month came shortly before a potential prisoner swap that would have freed Navalny and two Americans in exchange for an FSB officer serving time in Germany for murder. Western officials confirmed to Politico that such talks were underway, but said they were still in their infancy and that no tentative deal had even been offered to the Kremlin.

• Prosecutors in New York’s criminal case against Donald Trump regarding hush-money payments made to porn star Stormy Daniels requested on Monday that a gag order be placed on the former president ahead of next month’s trial. The request, submitted by Manhattan District Attorney Alvin Bragg,* sought “a narrowly tailored order restricting certain prejudicial extrajudicial statements by [the] defendant,” similar to a gag order already issued in the Washington, D.C. election interference case. Also on Monday, Trump’s legal team appealed the decision in the former president’s New York civil fraud case, which found him liable for lying about his assets to secure more favorable loan terms.

• Republican National Committee chairwoman Ronna McDaniel announced on Monday that she will step down from her position on March 8, following mounting calls from Trump to remake the RNC in his image ahead of the 2024 presidential election. “The RNC has historically undergone change once we have a nominee and it has always been [my] intention to honor that tradition,” McDaniel said in a statement. “I remain committed to winning back the White House and electing Republicans up and down the ballot in November.” Trump has endorsed North Carolina GOP chairman Michael Whatley to replace McDaniel and backed Lara Trump, his daughter-in-law, to serve as co-chair.

• The Federal Trade Commission on Monday sued to block a proposed $25 billion merger between Kroger and Albertsons, which would be the largest such supermarket deal in history. “Kroger’s acquisition of Albertsons would lead to additional grocery price hikes for everyday goods, further exacerbating the financial strain consumers across the country face today,” Henry Liu, Director of the FTC’s Bureau of Competition, said in a statement released Monday. “Essential grocery store workers would also suffer under this deal, facing the threat of their wages dwindling, benefits diminishing, and their working conditions deteriorating.” Spokespeople for the grocery chains have argued the merger will benefit consumers by allowing the combined entity to better compete against Amazon and Walmart.

Explaining The Alabama Supreme Court’s IVF Decision

Republican politicians have had quite a time in the last 10 days grappling with the effects of the Alabama Supreme Court’s decision legally protecting embryos under the state’s wrongful death statute, which prompted in vitro fertilization (IVF) facilities in the state to pause treatment. Tommy Tuberville, for example—the senior senator from Alabama—first expressed wholehearted approval of the decision while also saying he supported IVF. When asked about the effect of the decision on women currently in the middle of IVF treatment, he told Semafor, “I don’t know enough about how that works.” Finally, on Friday afternoon, the senator endorsed a move to legally protect IVF treatment.

Much to the chagrin of some pro-life advocates hoping to reform the IVF process, Tuberville’s evolution over the past week has been largely representative of elected Republicans’ efforts to distance themselves from any suggestion of restricting or banning IVF treatment. Democrats, seeing a political opportunity, have attempted to paint the Alabama decision as a consequence of the Supreme Court’s Dobbs ruling in 2022, but as with most hot-button court decisions, the devil is in the details.

While much of the national press coverage in recent days has framed the Alabama decision as an attempt to end or even ban IVF in the state, the case was actually brought by three couples who had undergone IVF treatment at an Alabama fertility clinic, the Center for Reproductive Medicine. As the decision noted in the facts of the case, “The plaintiffs’ IVF treatments led to the creation of several embryos, some of which were implanted and resulted in the births of healthy babies.” The remaining embryos were cryogenically stored, but in 2020, a patient at the hospital where the IVF treatment center was located accessed the storage area and destroyed some of the couples’ frozen embryos. The group sued the center under Alabama’s Wrongful Death of a Minor Act. A lower court dismissed the case, but the state Supreme Court reversed the ruling.

In an 8-1 decision, the court held that embryos are considered unborn children under the state’s wrongful death statute, and that the law has no carve out for frozen embryos outside of the womb. “This court has long held that unborn children are ‘children’ for purposes of Alabama’s Wrongful Death of a Minor Act,” Justice Jay Mitchell wrote in the majority opinion. The text of the act “is sweeping and unqualified,” Michell concluded. “It applies to all children, born and unborn, without limitation.”

Although the clinic in question raised concerns about the effects that considering frozen embryos as unborn children would have on IVF treatment in the state, Mitchell reiterated that such uneasiness is better addressed elsewhere. “While we appreciate the defendants’ concerns,” the justice wrote, “these types of policy focused arguments belong before the legislature, not this court. … It is not the role of this court to craft a new limitation based on our own view of what is or is not wise public policy.”

The majority opinion left the door wide open for the Alabama legislature to draft an exception in the law for embryos. The concurring opinion, written by Justice Brad Mendheim, echoed this framing. “It is the legislature that possesses the constitutional authority and responsibility to be the final arbiter concerning whether a frozen embryo is protected by the laws of this state,” he wrote. “Without such guidance, I fear that there could be unfortunate consequences stemming from today’s decision that no one intends.”

However, a concurring opinion written by the court’s chief justice, Tom Parker, raised the specter of restrictions on IVF treatment, citing IVF regulations in other countries that, in his view, “seem much more likely to comport with upholding the sanctity of life.” Parker’s opinion, which was not joined by other justices on the court, leaned heavily on theological views of the sanctity of life—he cited Thomas Aquinas and John Calvin, among other theologians—that he argued informed the state’s constitutional protections. Article I Section 36.06 of Alabama’s constitution “acknowledges, declares, and affirms that it is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.” The chief justice concluded, therefore, that “any legislative (or executive) act that contravenes the sanctity of unborn life is potentially subject to a constitutional challenge under the Alabama Constitution.”

Multiple fertility treatment centers in Alabama paused their IVF treatments in reaction to the decision, citing the risk of wrongful death liability for embryos, which can sometimes be destroyed inadvertently during the treatment process. Some women awaiting the implantation of embryos in the state have been thrown into limbo. At least one embryo transport company, Cryoport, has stopped operations in Alabama, limiting options for women wanting to transfer their embryos to other states to complete a program of treatment.

But both Democratic and Republican officials in Alabama have said they’ll act quickly in response to the decision. Alabama’s Attorney General Steve Marshall said in a statement last week that he has “no intention of using the recent Alabama Supreme Court decision as a basis for prosecuting IVF families or providers.” Even so, Republican Gov. Kay Ivey has backed a legislative proposal to protect IVF led by Republican state Sen. Tim Melson, a doctor who chairs the Alabama Senate’s healthcare committee. Melson’s draft bill would deem only fertilized eggs that have been implanted—not frozen embryos outside of the womb—as unborn lives. “We all know that conception is a big argument that it’s life,” Melson said. “I won’t argue that point, but it’s not going to form into a life until it’s put into the uterus.” Democratic lawmakers have already introduced a competing bill to protect IVF.

Republican leaders outside the state have also lined up in support of protecting and preserving IVF treatment. Former President Donald Trump backed IVF protections, as did former Vice President Mike Pence—Pence’s wife, Karen, underwent IVF treatment multiple times. Republican Govs. Brian Kemp, Bill Lee, and Chris Sununu have all said they support IVF in recent days, as have a slew of congressional Republicans—although some of the lawmakers have signed onto a bill that would provide fertilized eggs with equal protection under the 14th Amendment without exceptions for frozen embryos. Perhaps sensing an electoral vulnerability, the National Republican Senatorial Committee circulated a memo urging Republicans to “clearly state your support for IVF and fertility-related services as blessings for those seeking to have children,” and to “publicly oppose any efforts to restrict access to IVF and other fertility treatments, framing such opposition as a defense of family values and individual freedom.”

But this wave of vocal Republican support for protecting IVF has irritated some pro-life advocates who believe life begins at conception, whether inside or outside the womb. “It’s just been frustrating to see Republicans who have been very vocal about the sanctity of life and wanting to protect unborn life now, all of a sudden—because they’re already running scared from the Dobbs decision—[viewing] this as another dodgeball that they’re having to try to avoid,” Patrick Brown, a pro-life advocate and fellow at the Ethics and Public Policy Center, told TMD. “What’s been striking has been the sheer lack of confidence in the pro-life position, or the traditional political conservative position from a lot of elected Republican officials.” Former Ambassador Nikki Haley said last week, “embryos, to me, are babies,” but later clarified that she didn’t agree with the court’s ruling.

Democrats have tried to frame the court decision as further evidence of Republicans’ attempts to restrict women’s reproductive freedom. “The disregard for women’s ability to make these decisions for themselves and their families is outrageous and unacceptable,” President Joe Biden said in a statement reacting to the decision. “Make no mistake: this is a direct result of the overturning of Roe v. Wade.” (Legal observers have pointed out that the Dobbs decision had no relation to the Alabama case.) House Democrats’ Super PAC is planning to use the issue to target House Republicans in competitive districts. New York Gov. Kathy Hochul summed up the Democratic strategy: “This is part of [Republicans’] suicide pact,” she said last week. “This is done in a Republican state with Republican judges. It’s baked now as part of the Republican narrative. It’s absolutely baked. They can’t run from this.”

Democrats are clearly hoping the Alabama decision will have electoral staying power. It remains to be seen whether the state will pass a law addressing the ruling, though the bipartisan activity in the legislature suggests this is a question of when and not if. A majority of Americans support access to fertility treatment—60 percent believe fertility treatments should be covered by insurance, according to a Pew Research Center survey published last fall. In 2021, 97,128 babies were born via assisted reproductive technology including IVF, according to the Centers for Disease Control.

Worth Your Time

• Writing for The Atlantic, Adam Rubenstein, one of the editors who was scapegoated for his work on the notorious “Tom Cotton Op-Ed” at the New York Times in the summer of 2020, tells his side of the story. “I felt in those days like I was in a foreign country where I didn’t speak the language and was on trial for a manufactured offense,” he wrote. Rubenstein detailed the processes in place at the Times, and how quickly the higher-ups abandoned them when faced with internal backlash. He also offers a stark warning to the industry in the wake of the controversy. “If the Times or any other outlet aims to cover America as it is and not simply how they want it to be, they should recruit more editors and reporters with conservative backgrounds, and then support them in their work,” he concluded. “They should hire journalists, not activists. And they should remember that heterodoxy isn’t heresy. By telling the story the Times told about Cotton’s op-ed, the paper seemed to avoid confronting the tough reality that despite many staffers’ objections, the article was well within the bounds of reasonable discourse. What did it mean for the paper and its coverage that Times employees were so violently opposed to publishing a mainstream American view?”

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Toeing the Company Line

• It’s Tuesday, which means Dispatch Live (🔒) returns tonight at 8 p.m. ET/5 p.m. PT! The team will discuss the news of the week and, of course, take plenty of viewer questions. Keep an eye out for an email later today with information on how to tune in.

• In the newsletters: Kevin bemoaned (🔒) the nihilism of the modern Republican Party, the Dispatch Politics crew checked in on former Gov. Nikki Haley’s campaign for “normalcy” after her loss in South Carolina, and Nick analyzed the growing faction of “no peace” Republican voters backing Haley.

• On the podcasts: Sarah was joined by Steve, Jonah, and Mike at the Principles First Summit for a live Dispatch Podcast roundtable on the future of the Republican Party. Plus, former U.S. Assistant Attorneys General Stephen Boyd and Jody Hunt, as well as U.S. Attorney for the Northern District of Alabama Prim Escalona, joined Sarah to discuss the Alabama IVF ruling during a live recording of Advisory Opinions from the University of Alabama.

• On the site today: Leon Aron previews what the third year of the Ukraine War might look like, Stirewalt pens a column on social media and polarization and how the media is to blame, and Jonathan Marks provides a historical comparison for the antisemitism hearings that tripped up university presidents late last year.

Let Us Know

Setting aside your own opinion, do you think it’s ideologically consistent for Republican politicians who consider themselves pro-life to support an exception for in vitro fertilization?

Correction, February 27, 2024: Alvin Bragg was originally misidentified as New York’s attorney general.

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