Alabama’s Supreme Court Ruling: IVF, Fetal Personhood, and a Ripple Effect

In a recent decision, the Alabama Supreme Court declared frozen embryos the same status as people. The decision, which is not grounded in law, references theology and the Dobbs v. Jackson Women’s Health Organization case as a citation. Jessica Mason Pieklo, Senior Vice President and Executive Editor at Rewire News Group and cohost of Boom! Lawyered, sits down to talk with us about the recent Alabama Supreme Court ruling, invitro fertilization, and the concept of fetal personhood.

This ruling stems from a legal situation in which an invitro fertilization (IVF) clinic worker dropped some embryo dishes, accidentally destroying them. This court case ruling has effectively shut down IVF therapy across the state, which will undoubtedly cause a ripple effect and disproportionately impact those who depend upon IVF for family planning. This ruling may also have implications for contraception—if life, according to Alabama, truly “begins at conception,” then IUDs, which purposefully interferes with implantation, may be at risk.

 Another upcoming Supreme Court case, Alliance for Hippocratic Medicine v. FDA, will prove threatening to medication abortion and telehealth generally. You can learn more here.

Links from this episode

Jessica Mason Pieklo on Twitter
Rewire News Group on Twitter
Rewire News Group on Facebook
Alliance for Hippocratic Medicine v. FDA

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Transcript

Jennie: Welcome to rePROs Fight Back, a podcast on all things related to sexual and reproductive health, rights, and justice. [music intro]

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Hey rePROs! How's everybody doing? I'm your host Jennie Wetter, and my pronouns are she/her. So y'all last week was my birthday and it kind of snuck up on me. I'm not gonna lie. Like, I had been juggling so many balls at work and, like, so many things I'm trying to get done on a deadline and just have been so focused on all of those things. And it's just been a lot. And then also it was like, right my, the anniversary of my dad's passing. So really focused on that and trying to be there for my mom. And then all of a sudden, next thing I know, my mom's like, what do you want for your birthday? And I'm like, wait, what? It is? Oh, yep, it is almost my birthday. How did that happen? It really snuck up on me. And honestly, there was Leap Year this year. I had an extra day. You would think it wouldn't have snuck up on me in the same way, which, funny story, I was almost a leap year baby. Mom always says she refused to go to the hospital until it was actually March 1st because she refused to have me on Leap Year. Feels like an urban legend, but that's what she always says. So, that means my birthday was on a Friday this year, and so I took my birthday off and had a very long weekend to just relax and unwind from all of the many balls I am juggling at work. And was able to just be pretty chill, like watch some movies, did some reading, did some baking, had a very lovely dinner for my birthday and a birthday cheesecake. It was really just what I needed. And it was nice to have the time to unwind. Yeah. Yeah, I don't really, I have a ton to talk about today. Like I said, it was a pretty chill weekend. I do have to note that during this interview, you may or may not hear them. My editor might catch it, but she might also let some of them through because it's kind of funny. Cinder was all wound up and, like, running around my place and came and cried in the microphone once or twice. So, if you keep an ear out, you might hear one of my little monsters today. Luna was like, chill, napping on the couch and Cinder was like, full, I wanna play fetch! You're only on the microphone, don't worry about it, I wanna come say hi to Jess. So anywho, you might hear my little Cinder-bug. Meg can keep it in because it's pretty funny. But any who just thought I would share that. Anyway, let's talk about this week's episode. I'm very excited. One, I'm always excited to have Jess Pieklo at Rewire News Group and co-host of the amazing Boom! Lawyered podcast on, especially when there is anything legal. I always read Jess's stuff and listen to her Imani Gandy on Boom! Lawyered. I never miss an episode because I am not a lawyer, and they really help me understand all of these things much better. So, so grateful for all of the work they do, and I am always excited to have Jess on, and we had planned for her to come on for this week anyway, and because we're gonna have her come and talk about the Title X case that is in front of the appeals court that we were waiting for a decision on, but then Alabama happened and we decided that we really need to just spend that whole episode talking about what is happening in Alabama. So, we did, we spent today talking about the Alabama IVF case, and I'm very excited for y'all to hear it. So, you know what, let's just go straight into that episode and you can listen to my interview with Jess. Hi Jess! Thank you so much for being here.

Jessica: Oh, thanks so much for having me back. I love it.

Jennie: I always love having you here and we talked about having you come talk about Title X, but, like, things kind of went bonkers and maybe we should talk about what the hell happened in Alabama.

Jessica: Yeah, I mean love to have an entire sort of editorial plan go sideways because all of a sudden, the Alabama Supreme Court decides that it's going to go rogue and declare IVF embryos "people" under the law. It's been a wild ride. I mean, I think some of us were expecting this from Alabama sooner rather than later. And I think, you know, the response has also been very interesting, and maybe some silver linings to talk about also. But in general, Alabama was just, like, it's been a little bit since anybody talked about us, so we're gonna do something.

Jennie: Okay. Before we, like, go all deep-dive, I realized, hey, you got all excited to talk to Jess and didn't go. Jess, would you like to introduce yourself?

Jessica: [Laughs] I'm Jess! No, hi everybody. I'm Jessica Mason Pieklo. I'm SVP and Executive Editor at Rewire News Group. Rewire News Group is the nation's only on profit media organization dedicated exclusively to reproductive health rights and justice issues. And I also co-host our flagship podcast Boom! Lawyered.

Jennie: Yeah, and if I ever sound like I know what I'm talking about related to anything legal in abortion, it's because I listened to Boom! Lawyered and read Jess's stuff.

Jessica: Well, thank you. That is very kind.

Jennie: Okay, Jess, what the hell happened?

Jessica: Excellent question, man. So, truly Alabama, the Alabama Supreme Court in a recent decision declared that IVF embryos are people, are humans for purposes of wrongful death actions in the state. And it didn't just come to this out of nowhere—well before the Dobbs decision, Alabama had enshrined a human life amendment into its state constitution that functionally says life begins at conception. And when that happened, and you know, there was a little bit of giggling about how silly this will be, I dunno if you remember, there was the gentleman who had tried to have a guardianship created on behalf of a developing pregnancy because he didn't want his girlfriend to go through terminating that pregnancy. So, there were some early signs of shenanigans around this. And then it kind of went quiet because we had Dobbs and reacting to Dobbs. But all the while there was a fight over something that happened at an IVF clinic in Alabama, a fight in the courts that is. And what happened is tragic, you know, a worker had dropped some IVF embryo dishes and they shattered, they were destroyed. And if folks know much, if anything about IVF, they understand that it is a long and complicated and expensive and precise process. So, what happened to these people is something that normally the law tries to remedy, right? Like, there is an injury. But this is when fetal personhood takes us and the law can to completely bizarre places because here, we are discussing whether or not those Petri dishes contained human life sufficient enough to now more or less shut down IVF care in the state of Alabama with ripple effects in neighboring areas as well.

Jennie: Yeah, I think that's so important to talk about how expensive IVF is for people because some of the solutions that people are proposing are untenable.

Jessica: Right.

Jennie: And IVF is so expensive and often not covered by insurance. So, it's out of reach for so many people already. So, just thought that was a really good note to have in there as we're having this conversation.

Jessica: It really is. And, and, you know, I think it's so important to be talking about IVF in repro spaces because it hits on so many of the repro justice issues, cost of them being one of them, right? Like, if folks have means of expanding or creating families of their own that are prohibitively expensive, that's not just an equity issue, that's a justice issue as far as repro folks are concerned. Another thing that we know is that abortion care is often used for IVF patients when they are managing implantations, for example. And so, IVF creates an opportunity for us to have a holistic conversation about reproductive healthcare and family planning in ways that I think historically mainstream repro groups in particular have been a little leery about. Because I mean, for all of the issues, right? Like, we don't maybe want to draw attention to the role that abortion care can play in it, the fact that it is cost prohibitive for so many people draws attention to the ingrained inequities in the repro movement that we have been bad at addressing in any real substantive fashion. And the idea that also there are certain kinds of folks that—mostly rich, well, you know, affluent, mostly white women who access that—but that also carves out from the conversation the reality that IVF and assisted reproductive technologies generally have expanded family capacities for folks in queer spaces. And so, an attack on IVF is also an attack on queer parents and queer folks who want to have their own families and don't see other options available to them.

Jennie: And I feel like another one that I've seen pointed out a lot is women having pregnancies later.

Jessica: Yes.

Jennie: So, that are outside that traditional, like, get married young and start having babies.

Jessica: Absolutely. And there's, you know, there's economic overlays to all of that too. And again, you know, issues even within the disability rights communities as well that just get completely glossed over or ignored entirely as we're focused on the shock value. And rightly so because the decision was shocking, but the shock of having a court declare functionally a clump of cells is the same thing as a living, breathing, you know, human baby. I'm sure everybody at this point has seen the tweet that is either, you know, if you didn't see it on Twitter or X or whatever we're calling it these days, you saw it pasted in your Instagram stories that says, you know, the reason you can freeze an IVF embryo and it will survive is because it's not a human baby, right? Like, you can't do that. So we can poke fun and have, and you know, like make [indiscernible] jokes about it and everything, which is important for the gallows humor in getting through the moment, but also really recognize that what Alabama has done is open up a whole conversation that was probably long overdue, and one that the, you know, repro community needs to take seriously beyond, oh, this is just Alabama, or this is, you know, this is not that big of a deal. It really is a very big deal.

Jennie: I guess before we talk about the impacts, maybe we should talk a little bit about the decision while not surprising.

Jessica: Yeah.

Jennie: The language was kind of shocking.

Jessica: It was you know, so the decision is not grounded in law, right? I went to law school, and we had all sorts of folks who I disagreed with, but they used to have to put forward arguments that were grounded in law. This is just straight up referencing theology as a citation for doing what it's doing. I mean, really, truly talking about the value of human life in a biblical worldview, which is not something that we want to see truly in our legal opinions. The decision cites Dobbs left, right, and center as well for the ability to craft the kind of decision that it does. And not just because Dobbs overturned Roe— which is what I, you know, you see a lot of, like Dobbs made this decision possible—and that's true, it did. But again, the human life amendment predates Dobbs. This existed before, you know, Roe versus Wade was overturned. And I think what people miss in saying that Dobbs made this possible is that in the majority opinion in Dobbs, Sam Alito invoked religious tradition as a way to ground legal reasoning. And that is a, you know, red flag for us, green flag for the conservative legal movement that they can now do the same. Because if it comes from the highest court of land, it must be okay. And so, we can expect to see more decisions from courts and conservative jurists, you know, conservative legal judges, basically, that follows Sam Alto's modeling. And we'll see this as it respects, you know, with respect to some of the same sex marriage fights that are gonna come up. And like queer family fights in general, but you know, so, so just flagging that. But the decision is very long and says that yes, Alabama voters had enacted this constitutional amendment, and as a result of it, life truly does begin a conception, and therefore, these families that were impacted by this decision should have the ability to have a remedy under the state's wrongful death statute. And so, I also wanna put a pause there, because wrongful death claims are civil in nature. So, this is about getting these families who experienced this loss some money, because when you file civil claims, you're going for money damages, right? You're usually trying to get money as opposed to anything else. Yes, declaring an embryo, an IVF embryo, a human has potential criminal liabilities as, but the impetus for this particular lawsuit was about money.

Jennie: I just- my brain is going in so many directions. Like, if we're saying that life in that Petri dish is life, then like, I'm just thinking of all the implications around birth control and other things. And maybe we'll come back to that 'cause that seems like a good, like what's next? But yeah, this is just out of reach or...

Jessica: Yeah.

Jennie: People are just gonna stop offering it. So like, what are some of the implications that you're seeing or hearing?

Jessica: So immediately, fertility clinics in Alabama said that they were going to stop offering treatments while they sorted this out. IVF requires freezing and transferring embryos, which is dicey in light of the Alabama Supreme Court's ruling. Some patients and providers had initially tried to transfer embryos out of state. And then those providers were also not really excited to do that and say, we may be liable. Actually, we don't know if we can even do that. So, very similar to the kind of chaos and confusion we see when a brand-new terrible abortion ban drops out of nowhere and nobody knows what to do. We're seeing the same thing with regards to IVF. And one of the realities is that the business of healthcare is very conservative. And I don't mean that politically. I mean it in a risk-averse way. So, hospitals and clinics, regardless of abortion politics or whatever conversation, they've run their day-to-day operations from a conservative mindset, from taking on the least amount of risk possible because that protects patient care and their own economic bottom line. And so, really what we see is the anti-choice movement being very tactical in the way they weaponize that risk-averse behavior. In particular, this case brings that to light.

Jennie: This also makes me think bringing up the anti-abortion folks is like hearing them all be like, no, no, no, we support- we're not against IVF.

Jessica: They're liars.

Jennie: Right.

Jessica: They're liars. I'm old enough to remember when there was a debate on the…it may have been the US Senate, but if it was with a Kansas senator, it was at least in the Kansas State House, around snowflake babies and what are snowflake babies. This is a pathway for folks to adopt IVF embryos. And so, they have been given a name already, right? And so, this fuels into the whole kind of Christian family project, right? It's also splitting the, you know, conservative abortion anti-abortion movement right now because there is a large swath of folks who are against IVF who see it as a bad thing, who believe in life begins at conception. And not in a way in terms of, you know, enabling assisted reproductive technologies, but as, you know, quote unquote God's way of making sure only some folks are reproducing, and others are not. So, it's very eugenicist in its groundings as well. Then, of course, there are the other conservatives who are like, IVF isn't as bad because it means at least some people are having babies, and usually it's rich white ladies and we're okay with that.

Jennie: Oh God, so much horror. And so, so few words there.

Jessica: That's my specialty. [laughs]

Jennie: We all have a skill. [laughs] Yeah. Like, this is just my heart breaks for the people-

Jessica: Yeah.

Jennie: -who are already far along in the process or have started the process and are in this limbo now. Like, this is just, again, chaos.

Jessica: I'll say that, you know, since the ruling has dropped, I have been in conversation with folks in Alabama who say that conservative lawmakers in the state are legitimately freaked out by this ruling. And not necessarily just because it may be bad for them electorally, but because they may or may not have really understood that a court could go this far. I don't know. I mean, I'm always kind of rolling my eyes when they say, ah, we didn't know it could happen. Like, it's your job actually to think about those things as a lawmaker. But if this has the ability to really hone in some attention on the conversation around fetal personhood, I think that's a good thing. The Biden administration has announced that it's sending Secretary Becerra to Alabama to, you know, do some boots on the groundwork here. There was a personhood measure in Florida that had been advancing, that has now stalled as a result of the blowback from the Alabama Supreme Court decision. Do I think that that proposal is necessarily dead? And we won't hear the end of it? No. I mean, we know that these folks will never be satisfied until they've reached some of these parts. But the immediate public attention and sort of visceral reaction to what this could mean in terms of just general health policy is I think creating a moment for conversation that hopefully we can, you know, do some good out of. I would like to see, you know, even if it is a carve out to the human life amendment that allows for IVF to continue in Alabama. No, that's not a, you know, full scale throat full throated win. But you know what folks in Alabama who are in the process of wanting those treatments and having access to them should have that. And so, we can start there.

Jennie: Yeah. That seems important to like, at least move the ball a little bit, but it does again, make me worry about what, what else should we be worried about? Like these legislators acting like, "oh, we had no idea this could happen" when so many repro people had been yelling at the top of their lungs of like, they are coming for Roe, they are coming for IVF, they're coming for birth control. Like-

Jessica: Yeah.

Jennie: What should be keeping an eye on right now?

Jessica: That the attacks on IVF go and get extended to attacks on other forms of hormonal contraception—not that I'm saying IVF is hormonal contraception, that was awkwardly stated—but for example, IUDs. You know, if truly life begins at, at conception, then any device that interferes with implantation functionally becomes an abortifacient. And we have heard that rhetoric from the conservative legal movement already. They allied contraception and abortion together all the time. And if this ruling is allowed to, like, I mean, there's not much that can be done about it, right? I mean, in terms of overturning the Alabama Supreme Court, it's gonna take a different Alabama Supreme Court decision to do that or a change in the human life amendment. But, you know, in the interim, it can give conservatives in other states ideas. And we hear, you know, I mean this is going on in Idaho right now, for example. And other places—in Indiana where the- you know, they're really looking to you know make inroads against contraception access. I think it was Senator Lindsey Graham who was out there that said, you know, we support "legal contraception." And that is a huge tell-

Jennie: Red flag.

Jessica: -because "legal" Is something that can be winnowed down to...legal contraception, could mean only the barrier, only barrier methods without hormones, right? So like, sorry, you just, you know, maybe you get a sponge or a condom, right? But like nothing that has the efficacy of modern contraceptive methods. If they decide to outlaw IUDs and the birth control pill, well then great, your legal contraception choices are a condom or the pullout method.

Jennie: Yeah.

Jessica: Which is effective, but still!

Jennie: Yeah.

Jessica: Give me the pill if I want it. That's all.

Jennie: Oh, this is all like thinking this in the web of, like, things that are also happening.

Jessica: Mm-hmm.

Jennie: So like, we are looking at the first over-the-counter birth control pill, like, I'm already worried about the ways that like, people are gonna mess around with the ability to access that. Like I just flash it back to, like, Hobby Lobby and...

Jessica: We know, you know, we know that there's gonna be shenanigans around insurance coverage for over-the-counter pills. And like, so, you know, what's the accessibility point in terms of a price point? What's the ability of brick and mortar to refuse without a referral, which is, you know, definitely something that the conservative legal movement has its eye set on, right? All of those points of sale moments that can get disrupted.

Jennie: Oh, and this always just feels like a cascade of all of the things that are there to worry about whenever I talk to you.

Jessica: I'm so sorry.

Jennie: It's okay. I'm sure I'm that person for other people, so.

Jessica: You know, I mean, it's an important role and I do again, like to, to bring it back to Alabama and sort of ripple effects. You know, there is a moment here to coalesce around a couple and just ask some questions, right? Why in particular has the conservative legal movement set its sight on states like Alabama and Mississippi and Texas for their trial balloons of their worst policies? What's going on there in terms of the population? What do we know about how those policies impact the people who actually live there versus the people who have political power there? You know, and I think it's really time to shine the brightest light possible on it. And not to say, "well, Dobbs made every bad state abortion ban possible," because so much of this predates Dobbs. What Dobbs did was empower the conservative legal movement to say the quiet parts out loud.

Jennie: Well, and some of my worry is that this is getting so much attention for that reason. We talked about that it is mostly white women, well-off white women who are able to access this care. And so, the backlash is getting heard more than in other places.

Jessica: Mm-hmm. I mean, I think that that's just the truth, right? I think that that is also, you know something that we saw in the immediate aftermath of the Dobbs decision too, right? Which were the stories of folks denied abortion care for whatever reason, whether it was a lethal fetal anomaly, whether it was, you know, a diagnosis that would've put their health at risk. We saw immediately the elevation of certain sympathetic players in these restrictions. And when we, again, know that even before Dobbs, for some folks, care was impossible to access. And we also have seen after Dobbs that likely the first real deaths also hit those communities that weren't the, you know, white OBGYNs who couldn't get care in Texas and had to leave the state—tragic, horrible, whenever that happens to anybody. But why is that the story that's elevated within the media and within policy circles is I think something that the repro space is still really reckoning with.

Jennie: Okay, before I let you go, this is coming out in early March, so later this month, Supreme Court is gonna be hearing another abortion case. Where's your head on that right now?

Jessica: Alliance for Hippocratic Medicine—this is the challenge that the court is gonna hear in March—it is a huge case for so many reasons. And I am very concerned about it, and I'm concerned about it not just for what it will do for mifepristone access, but I am concerned about it for what it, for its potential to really re-ingrain health inequities in general. And that's because while, yes, AHM is a case about medication abortion access, it is largely a case about telehealth in general. And one of the things that we know about telehealth is that while it is not the be-all-end-all savior for many of the inequities that exist in our current healthcare system, it is an important tool in addressing them. Telehealth is important for folks who live all over the country, not just rural communities, not just like geographically isolated populations, but truly for folks who have and want the desire to have more agency in their healthcare decisions. And so, AHM opens the door to really restrict that in, or, you know, to roll back gains in that area generally. I'm also very concerned about it because—and I mean, I have seen very little on this, we've tried to cover it at, at rewire, but just in, in other conversations—it's been a long time since folks have lived under the original regulatory regime around medication abortion and access. And rolling that back—taking away the ability to have telehealth for medication abortions, to require, again, two in-person visits—will absolutely overwhelm the places that do have the capacity in this moment to actually see patients, those, you know, brick and mortars that haven't been forced to close after Dobbs. But there's no way to absorb that patient overwhelm, which is the point, right? They want to cripple in the worst possible ways the healthcare system in that regard. So, there's that. And then finally is with this court—we have to always keep our eye on the sleeper issues, and we have the Alliance Defending Freedom out there, telling the court that now is the time to actually decide how powerful or how far reanimated the Comstock Act can become. And the court does not have to bite on that question, but what we saw in Dobbs was that they bit on the thing that they didn't have to bite on. And so, if the conservatives on the court are really eager to empower a conservative administration coming up, they will do so via a decision that says the Comstock Act is a legitimate statute to be, you know, looking to restrict abortion access nationwide, and then it's off to the races.

Jennie: Oh, man. I feel like we haven't done a deep dive on Comstock on here. Gonna have to do it.

Jessica: Oh, yeah. I mean, you know, Garnet Henderson, who I'm biased because she is you know, one of Rewire's groups best and brightest, but truly, you know, she knows the Comstock Act left, right and center, and it is absolutely a tactical and strategic decision by some of the devious minds of the conservative legal movement to try and create workarounds for places like New York, California, Colorado, New Mexico, Illinois, that have really done what they can to provide pathways of access after Dobbs.

Jennie: Okay. So, we always end with not doom and gloom. So, what can people do right now? How can they get involved in these fights or help make things better in Alabama?

Jessica: Absolutely. Well, so first and foremost, as far as Alabama is concerned, listen to the folks in Alabama who are there right now responding to this crisis. You know, it has been a real hard time in that state since Dobbs. It wasn't easy before, but man, Dobbs really, really made it worse. And they are trying to work with the folks that they have and the resources that they have to remedy this. So, it does not help for folks from not Alabama to come in and offer opinions and thoughts as to the best way to proceed forward on that first and foremost. This is an opportunity for those of us who aren't Alabamians, to do some listening first and foremost and let those folks really take the lead. And then obviously to the extent that you have material resources that can donate to those groups on the ground, do so because they are still providing care to Alabamians who need it, regardless of whether abortion, IVF contraception, any of those things are legal, like they are, they are doing real acts of medical- civil disobedience is one way to think of it. And push your lawmakers for clear answers on this. We have conservatives out there saying they do not support restrictions or bans on IVF while simultaneously sponsoring bans that would do so, that same thing. So, keep that pressure up and make them clarify what that means, because we don't get a lot of legislating opportunities in the repro space that come up via, you know, sort of from the courts like this. But we may have one here. And incrementalism isn't necessarily our friend as we've seen in the repro space, but if we can start somewhere in getting folks to understand fetal personhood and the dangers that that possesses, then I think it's okay to be talking about incrementalism at the same time.

Jennie: Jess, as always, it is a pleasure to talk to you about horrible things.

Jessica: [Laughs] Thank you.

Jennie: Thank you. And I can't wait to have you on again to talk about the next new horrible thing.

Jessica: And at some point, we will talk about the brand-new wonderful thing.

Jennie: Yes!

Jessica: Because really at the end of all of this is the opportunity to build something better. And what we can't lose sight of is the fact that there are advocates and regular old folks doing that every single day in our communities, and they're doing that no matter what the Alabama Supreme Court says, or no matter what Sam Alito says, and that matters.

Jennie: Absolutely. I have full faith, there will be good things coming. It may suck right now, but I see them.

Jessica: The only way out is through.

Jennie: Okay, y'all, I hope you enjoyed my interview with Jess. As I said, make sure to check out Boom! Lawyered. I love that podcast. I never miss an episode and always follow her writing at Rewire News Group and I will see you all next week. [music outro] If you have any questions, comments, or topics you would like us to cover, always feel free to shoot me an email. You can reach me at jennie@reprosfightback.com or you can find us on social media. We're at @RePROsFightBack on Facebook and Twitter or @reprosfb on Instagram. If you love our podcast and wanna make sure more people find it, take the time to rate and review us on your favorite podcast platform. Or if you wanna make sure to support the podcast, you can also donate on our website at reprofightback.com. Thanks all!