Republicans have been forced to stake an uncomfortable position between their anti-abortion base and the wider American public, as fallout from an Alabama supreme court ruling that embryos are “extrauterine children” continues into a second week.
Meanwhile, Democrats have seized on the issue as the forewarned conclusion of decades of Republican policies to restrict reproductive rights, and pointed to contraceptives as the next frontier for restrictions.
“Republicans are in a pretty tough spot, because not only have they aligned themselves with the anti-abortion movement, but they really need the anti-abortion movement now,” said Mary Ziegler, a legal expert on the history of reproduction, and the Martin Luther King Jr professor of law at the University of California, Davis.
“They can’t win without anti-abortion base voters,” she said.
The fallout is likely to continue through the week as the US senator Tammy Duckworth seeks to force a vote on a bill to enshrine protection for IVF in federal law, a prospect that has been met with palpable Republican squirming.
In one example, when the Republican US senator Joni Ernst was asked whether she believed embryos were children, she told the Huffington Post: “I don’t want to say they’re not children.”
There has also been strong grassroots pushback. On Wednesday, families and advocates are expected to rally at the Alabama state capitol against the state supreme court ruling. The US health and human services secretary, Xavier Becerra, is expected to appear in Alabama on Tuesday evening alongside families harmed by the decision.
A growing number of Americans say they know someone who has received fertility services, and an overwhelming majority of American women say they have received advice on fertility, according to the Pew Research Center.
Democrats are also seeking to make the connection between Alabama’s IVF decision and birth control restrictions, which are likely to alienate voters. All but eight Republicans opposed a bill to protect contraception that was proposed immediately after Roe v Wade was overturned in 2022.
Republicans have been “anti-family and anti-women at every turn, and that has proven to be a losing issue for Republicans”, said the Democratic Congressional Campaign Committee chair, Suzan DelBene, in a press call on Monday. “Come November, we’ll take back the House of Representative to enshrine the protections of Roe once and for all.”
The Alabama supreme court threw assisted-reproductive treatments in the state into chaos last week when it issued a decision that said embryos created for IVF were “extrauterine children”. The decision forced three in eight clinics to pause treatments, and left would-be parents who were undergoing expensive and taxing treatment with few options.
By bestowing embryos with the rights of children, the core idea of fetal “personhood” backed by the anti-abortion movement, justices threw into question multiple stages of the IVF process.
Among myriad questions, it was no longer clear whether parents had the right to destroy genetically abnormal embryos or whether that would be considered “wrongful death”; whether doctors could be held liable for embryos that failed; or whether a person could be forced to have all created embryos implanted in their uterus.
Clinics that paused treatments cited the potential for civil and criminal liability for doctors, if they were to continue. Additionally, at least one company that ships frozen embryos said it would pause business in Alabama, making it more difficult for couples to move embryos out of state.
The fallout – upheaval in the industry, sorrow among families and rage among doctors – has been cheered by anti-abortion groups, the fiercest proponents of fetal “personhood”, and met by backpedaling from Republicans, who have tied themselves intimately to the movement despite a lack of popular support.
The powerful Christian legal group Alliance Defending Freedom described Alabama’s decision to the BBC as a “tremendous victory for life”. The president of one of the largest anti-abortion advocacy groups in the country, Lila Rose of Live Action, said the decision is “an important step towards applying equal protection for all”.
Republicans have flailed in response to the decision, seeking a middle ground that voices support for IVF without drawing attention to their own record of undermining its legality.
Lawmakers on the right in Florida postponed a “personhood” bill in light of the fallout. The Republican Alabama senator Tommy Tuberville floundered when asked about the IVF decision.
Republican governors Bill Lee of Tennessee, Brian Kemp of Georgia and Chris Sununu of New Hampshire all voiced support for IVF following the decision, as did former president Donald Trump, the presumptive Republican presidential nominee. Republican and Democratic Alabama lawmakers said they were working on a bill to protect IVF treatments.
But Republicans’ attempt to put daylight between themselves and the decision is complicated – not least because all of Alabama’s supreme court justices are Republicans.
“The strongest Trump voters are self-professed evangelical Christians who often believe in personhood”, or the idea that fertilized eggs should have the same rights as people, said Ziegler.
Trump himself nominated and confirmed three of the conservative US supreme court justices who ultimately overturned Roe v Wade, which paved the way for the Alabama decision. One of those justices, Amy Coney Barrett, publicly supported an organization that said the discarding of embryos in IVF ought to be criminalized.
Virtually every Republican who has spent significant time in office, at either the state or federal level, has offered material or rhetorical support for the anti-abortion movement. As a party, Republicans have done so knowing there are reliable and motivated voters energized by the anti-abortion movement. Any strong rebuke of the core tenets of the ruling – “personhood” in particular – could imperil that support.
“This is not a scenario where Republicans can say: ‘Hey, anti-abortion movement, you’ve got to cut it out on this personhood stuff because you’re killing us,” said Ziegler.
