Fetal personhood laws are about more than abortion: Republicans block bill to protect IVF nationwide

This month’s Alabama court ruling that IVF (In Vitro Fertilization) embryos are “children” covered by wrongful death lawsuits has Republicans scrambling to distance themselves from the fallout. According to the party’s own polling, 85% of Americans support increasing access to fertility-related procedures and services. The high level of support remains consistent among the GOP’s most dedicated voters: 78% of abortion opponents and 83% of evangelicals support IVF specifically.

Among the slew of candidates attempting to disown the Alabama opinion are many who support fetal personhood—the very ideology that made the court’s ruling possible. Fetal personhood is the belief that life begins at conception and, therefore, embryos and fetuses are simply “unborn children” with the same rights and protections as born children.

Roe and Dobbs

Before we talk about the current effort to enshrine fetal personhood into law, we must look 50 years into the past to Roe v. Wade. In defending Texas’s ban on abortion before the U.S. Supreme Court in 1972, Texas Assistant Attorney General Robert C. Flowers argued that “it is the position of the State of Texas that upon conception we have a human baby, a person within the concept of the Constitution of the United States and that of Texas also.”

We all now know that the justices ultimately ruled 7-2 against Texas, holding that pre-viability abortion bans infringe on the mother’s right to privacy “founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action.” Less well-known is the majority’s explicit rejection of fetal personhood:

The Constitution does not define "person" in so many words. Section 1 of the Fourteenth Amendment contains three references to "person." The first, in defining "citizens," speaks of "persons born or naturalized in the United States." The word also appears both in the Due Process Clause and in the Equal Protection Clause. "Person" is used in other places in the Constitution…But in nearly all these instances, the use of the word is such that it has application only post-natally. None indicates, with any assurance, that it has any possible pre-natal application.

All this, together with our observation, supra, that, throughout the major portion of the 19th century, prevailing legal abortion practices were far freer than they are today, persuades us that the word "person," as used in the Fourteenth Amendment, does not include the unborn.

Thus, Roe stood as a backstop against the legal recognition of fetal personhood for nearly half of a century. Then Justice Samuel Alito came along with a newly empowered conservative majority, declaring in Dobbs v. Jackson Women’s Health that “Roe was egregiously wrong from the start.” In addition to removing all constitutional barriers to states imposing abortion bans, Dobbs outright refused to weigh in on fetal personhood, instead leaving states free to embed the belief in their legal codes as they see fit:

Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth. The dissent, by contrast, would impose on the people a particular theory about when the rights of personhood begin. According to the dissent, the Constitution requires the States to regard a fetus as lacking even the most basic human right—to live—at least until an arbitrary point in a pregnancy has passed.

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Alabama ruling

The Alabama Supreme Court ruled 7-2 last week that IVF (In Vitro Fertilization) embryos are “children” subject to wrongful death lawsuits—a decision that will likely cause the state's five fertility clinics to close due to increased liabilities.

• IVF is a type of fertility treatment where eggs are combined with sperm outside of the body in a lab (video explainer by the Cleveland Clinic). Numerous embryos are created because, on average, only 50% will progress to the blastocyst stage before being transferred into the mother’s body. The failed or low-quality embryos are discarded. Unused healthy embryos are either frozen for potential future use, discarded, or donated (to someone else or for use in research).

The case, LePage v. Center for Reproductive Medicine, Inc., originated when a hospital patient wandered into an adjacent “unsecured” cryogenic nursery and tampered with an IVF freezer, destroying preserved embryos in the process. The parents—who had already successfully conceived via IVF—sued, alleging that the clinic was liable under Alabama’s Wrongful Death of a Minor Act based on their argument that embryos are, for legal purposes, children.

Associate Justice Jay Mitchell, a member of the Federalist Society, wrote for the majority that embryos are actually “extrauterine children” (defined by Mitchell as “unborn children who are located outside of a biological uterus”) and, therefore, protected by the Wrongful Death of a Minor Act. To support their claim, the majority pointed to dictionary definitions from the time the Act became law (1872), purportedly defining “child” as including the unborn. They also cited Alito’s declaration in Dobbs that “even as far back as the 18th century, the unborn were widely recognized as living persons with rights and interests.”

Let’s say you doubt that an 18th-century American could even imagine a process that enabled fertilization outside of the womb. That doesn’t matter, the majority argues, because a provision of the Alabama Constitution referred to as the Sanctity of Life Amendment requires courts to interpret “the rights of the unborn child equally with the rights of born children.” The amendment states, in part, 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 implications of the majority’s reasoning reach beyond wrongful death claims: every state law involving “children” must be extended to embryos. The destruction of unused embryos, even with parental permission, would appear to be homicide under the standard laid out by the majority.

In case it wasn’t clear where the Alabama Supreme Court’s vision of fetal personhood comes from, Chief Justice Tom Parker spells it out very clearly: religion.

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.

• Parker is close friends with former Alabama chief justice and disgraced U.S. Senate candidate Roy Moore. While running for a judicial seat on the court in the mid-2000s, Parker attended a party in honor of Confederate general and KKK grand wizard Nathan Bedford Forrest, handed out confederate flags at the funeral of a Confederate widow, and was photographed alongside leaders of the hate groups League of the South and Council of Conservative Citizens. And if that wasn’t enough, in a recent interview with QAnon conspiracy theorist Johnny Enlow, Parker “indicated that he is a proponent of the ‘Seven Mountain Mandate,’ a theological approach that calls on Christians to impose fundamentalist values on all aspects of American life.”

At least three fertility clinics in Alabama have ceased providing in vitro fertilization procedures in response to the court’s ruling. “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,” University of Alabama at Birmingham (UAB) spokeswoman Hannah Echols said. Additionally, UAB—Alabama's biggest hospital—told ABC News that shipping companies are unwilling to risk shipping embryos out of state or to another facility, leaving families who spent thousands of dollars on the first stages of IVF with no options.

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Current fetal personhood laws

Only one other state has fetal personhood language in its legal code that goes as far as Alabama. Missouri law contains two sections that explicitly define life as beginning at conception without any exceptions that could protect IVF. The first, section 188.026, is a 2019 law that banned abortion at 8 weeks of pregnancy, created in case the courts overturned Roe v. Wade. It declares that a “child” exists “from the moment of conception.” The second, section 1.205, is a 1988 law stating that “the laws of this state shall be interpreted and construed to acknowledge on behalf of the unborn child at every stage of development, all the rights, privileges, and immunities available to other persons, citizens, and residents of this state.”

The effects of Missouri’s existing fetal personhood laws have already led to complicated, sometimes absurd, legal challenges. In 2018, a man charged with child molestation unsuccessfully tried to argue that the victim was above the statutory age limit if her age was calculated from conception, not birth. In a separate case, going to trial this year, the family of a pregnant woman killed while working for the Missouri Department of Transportation sued on her unborn son’s behalf. The Department argued that, since her son was considered a person, he met the definition of an employee despite not being born yet. And because Missouri law bars wrongful death lawsuits when an employee dies on the job, the lawsuit should not be allowed to proceed.

For at least one Republican, Missouri’s current fetal personhood laws don’t go far enough. House Bill 1616, sponsored by Rep. Brian Seitz, amends section 1.205 to add that “unborn children…are entitled to the same rights, powers, privileges, justice, and protections as are secured or granted by the laws of this state to any other human person.”

Georgia also has fetal personhood language in its legal code, but clarifies that it only applies to an embryo or fetus “carried in the womb.” This exempts IVF from the law but does not stop prosecutors from criminalizing mothers or prevent lawmakers from banning emergency contraception (see below).

• Due to Georgia’s fetal personhood law, residents can choose to claim a fetus as a dependent on their taxes. With the criminalization of abortion, however, reproductive rights experts warn that women may be investigated if they claim the exemption one year but do not claim a dependent in the next.

The Arizona legislature passed a fetal personhood law in 2021 to ban abortion. “The laws of this state,” Act 1-219 says, “shall be interpreted and construed to acknowledge, on behalf of an unborn child at every stage of development, all rights, privileges and immunities available to other persons.” However, U.S. District Judge Douglas Rayes blocked the law—which contains a carve-out for “a person who performs in vitro fertilization procedures—in 2022.

Fetal personhood bills

There are 14 legislatures considering bills that embed fetal personhood ideology into some portion of state law. The most extreme include:

Iowa House Bill 2256 amends the state’s wrongful death act to include “the wrongful death of an unborn child,” who is defined as “an individual organism of the species homo sapiens at any stage of development [starting] from fertilization.” The bill opens with a declaration that “innocent human life, created in the image of God, should be equally protected under the law from fertilization to natural death.”

Indiana House Bill 1379 amends the state’s wrongful death statute to define “child” to include “a fetus at any stage of development from fertilization at the fusion of a human spermatozoon with a human ovum.”

New York Assembly Bill 5566 proposes an amendment to the state constitution that defines the words “person,” “human,” and “human being” to mean “a member of the species homo sapiens at any stage of biological development beginning at the moment of fertilization regardless of age, health, level of functioning, or condition of dependency.”

Oklahoma Senate Joint Resolution 30 would declare “the human conceptus, zygote, morula, blastocyst, embryo, and fetus” as “unborn persons” with “protectable interests in life, liberty, the pursuit of happiness, and the enjoyment of the gains of their own industry.”

South Carolina House Bill 3549 states that “the sanctity of innocent human life, created in the image of God…should be equally protected from fertilization to natural death.” State law already defines an “unborn child” as existing from “fertilization until live birth.” HB 3549 extends existing laws “to all preborn children from the moment of fertilization.”

Impacts beyond IVF

Criminalizing women

Aside from the most obvious effect of fetal personhood laws—banning abortion—and the recent court ruling making IVF unworkable in Alabama, these laws also assist prosecutors in criminalizing women for their conduct while pregnant. At its most expansive, fetal personhood applies all of the states’ laws to embryos and fetuses, including child welfare statutes.

Marshall Project: Some prosecutors in Alabama, South Carolina and Oklahoma have determined that under those states’ laws and court rulings establishing fetal personhood, child welfare statutes can apply to a fetus. Mississippi doesn’t have a fetal personhood law, but that hasn’t stopped prosecutors in at least two counties from filing criminal charges against women who tested positive for drugs while pregnant.

For example, an Alabama woman was charged with chemical endangerment of a child for using methamphetamine before she even knew she was pregnant. A different woman in Alabama was charged under the same statute despite not even being pregnant. Yet a third woman charged with endangering her unborn child was forced to give birth alone in an Alabama jail shower.

In some cases, women were arrested and prosecuted after being honest with their doctors about their struggles with substance abuse. At one South Carolina hospital, a new mother admitted to occasional drug use while pregnant, only to have hospital staff call police who arrested her after a nurse handed over her medical records. A few women have even been prosecuted after seeking treatment. In 2018, Kearline Bishop was pregnant and struggling with meth addiction. She said she checked herself into a rehab program in northeast Oklahoma because she knew she needed help.

Banning birth control

Fetal personhood laws enable lawmakers and prosecutors to restrict access to birth control under the incorrect but pervasive assumption that emergency contraception (e.g. Plan B) and IUDs are abortifacients. According to the belief that life begins at fertilization, not implantation (or a later stage), any medication or device that is erroneously thought to interfere after fertilization could be banned. Therefore, whether a truly held belief or simply convenient to open a backdoor to prohibiting birth control, fetal personhood threatens women’s autonomy and bodily freedom beyond the right to abortion.

KFF: The definitions that abortion bans in some states employ, coupled with the misunderstanding that certain contraceptives are abortifacients, may be used to limit access to contraceptives. While leading medical organizations define pregnancy to begin at the implantation of a fertilized egg, a number of abortion bans define pregnancy to begin at fertilization and “fetus” and “unborn children” as living humans from fertilization until birth. The total abortion ban in Tennessee, for instance, defines pregnancy as the “reproductive condition of having a living unborn child within [the pregnant person’s] body throughout the entire embryonic and fetal stages of the unborn child from fertilization until birth.” If abortion bans establish that a pregnancy exists from the moment of fertilization, preventing the implantation of a fertilized egg could be construed as terminating a pregnancy. This kind of definition could potentially be used to ban or restrict contraceptive methods that people incorrectly believe to end a pregnancy.

This, unfortunately, is not a hypothetical conversation. An Oklahoma House committee recently passed House Bill 3216, sponsored by Rep. Kevin West and written in concert with Alliance Defending Freedom, to ban emergency contraception. It would also, as Rep. West himself reportedly admitted, prohibit IUDs.

• Among the other provisions of the bill is a section that would require the Oklahoma Department of Health to create and maintain a database of women who have obtained abortions, the physicians who have performed the procedure, and the reason the procedure was performed.

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What’s next

In order to protect IVF nationally, the U.S. Congress would have to pass legislation to prohibit individual states from adopting laws that limit or threaten access to fertility procedures. It just so happens that Senate Democrats have such a bill already: S.3612, called the Access to Family Building Act, would establish a federal right to access IVF and other assisted reproductive technology.

Given all of the Republican statements supporting IVF, an outside observer may believe that S.3612 would easily pass the U.S. Senate. However, Sen. Cindy Hyde-Smith (R-Miss.) objected to unanimous consent to pass the bill yesterday. Members of her party apparently backed her objection, saying that the issue was up to the states:

“The Dobbs decision said that abortion is not part of the Constitution, and they said we’re sending the issue back to the states, and I think that’s where it belongs,” said Sen. John Kennedy (R-La.). “I believe that the people of Alabama – either themselves or through their legislature – will get something worked out that they’re comfortable with, but I do support fertility technology,” Kennedy added…

“I don’t see any need to regulate it at the federal level,” said Sen. Roger Marshall (R-Kan.)...

“It’s idiotic for us to take the bait,” said Sen. J.D. Vance (R-Ohio), who clarified he was referring not to Duckworth’s bill on its face but to Democrats’ attempts to use the proposal as an IVF messaging tool…

Sen. Lindsey Graham (R-S.C.), who spoke to reporters in defense of IVF on Wednesday, quipping that “nobody’s ever been born in the freezer.”

Even if the Access to Family Building Act were to pass the Senate, it would still have to get through the U.S. House, where 124 Republicans sponsor H.R.431, the Life at Conception Act. “The terms ‘human person’ and ‘human being,’” the bill reads, “include each and every member of the species homo sapiens at all stages of life, including the moment of fertilization, cloning, or other moment at which an individual member of the human species comes into being.”