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 14^th 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 14^th 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.