Republicans scramble to contain backlash from IVF court ruling

Alabama’s “Attorney General [Steve] Marshall has no intention of using the recent Alabama Supreme Court decision as a basis for prosecuting IVF families or providers,” Katherine Robertson, the chief counsel to Mr. Marshall, said in an emailed statement on Feb. 23.

Following the Alabama Supreme Court ruling last week that allowed parents to sue for the wrongful death of their minor children, including embryos, several of the state’s fertilization clinics halted their work on in vitro fertilization (IVF), which is the creation of embryos by mixing eggs and sperm in a lab dish.

The ruling by Alabama’s top court, whose elected judges are all Republican, left doctors and patients wondering how to legally store, transport, and use embryos if they are to be held liable for any embryos that are destroyed or lost.

The court’s chief justice, Tom Parker, wrote in his concurring opinion that the court was simply following state laws and that it was up to the state’s legislature to pass new measures that would regulate the IVF clinics and processes according to the state’s 2018 Sanctity of Life Amendment approved by voters that supports “the sanctity of unborn life and the rights of unborn children.”

Alabama state Senator Tim Melson, a doctor and a Republican, told local media on Feb. 22 that he was going to file legislation that would protect the IVF industry and families who use it. The earliest Mr. Melson’s bill can be filed will be on Feb. 27 when the Senate is next in session, according to the state’s Legislative Services Agency.

House Minority Leader Anthony Daniels, a Democrat, filed a bill on Feb. 22 that states “any fertilized human egg or human embryo that exists outside of a human uterus is not considered an unborn child or human being for any purpose under state law.”

Republicans, Trump try to contain backlash

With Republicans already playing defense on the issue of abortion rights ahead of this year’s election, they rushed on Feb. 23 to limit the damage of the court’s ruling.

In a statement on Feb. 23, Donald Trump called on the Alabama legislature to find an immediate solution to preserve the availability of IVF treatments in the state.

“I strongly support the availability of IVF for couples who are trying to have a precious baby,” the former president said in a post on Truth Social.

Democrats, meanwhile, were looking to capitalize on the Alabama ruling. U.S. Senator Elizabeth Warren, a 2020 Democratic presidential candidate, told CNN on Feb. 23 that “abortion and IVF are going to be on the ballot in November.”

President Joe Biden and the White House have criticized the Alabama ruling, with Press Secretary Karine Jean-Pierre saying on Feb. 23 that “IVF is under attack” and calling on Congress to enact protections.

A White House source told Reuters there is very little the White House can do legally through executive orders to challenge the Alabama ruling.

“The only option is to continue raising the issue, making it a political fight and using the bully pulpit to get more attention,” the source said.

After the U.S. Supreme Court in 2022 abolished the constitutional right to obtain an abortion in Dobbs v. Jackson Women’s Health Organization, the backlash for Republicans in the midterm elections was swift and severe. Democrats were able to retain control of the Senate and limit their losses in the U.S. House of Representatives.

With Mr. Biden facing strong headwinds in his re-election bid this year, Democrats are hoping to leverage the abortion issue further to help Mr. Biden secure a second term and boost their prospects in Congress. The Alabama ruling could catalyze those efforts, strategists said.

“This is massive,” said Jess McIntosh, a Democratic strategist who advises campaigns on abortion-rights issues. “It’s honestly landing with a similar explosion to Dobbs.”

Mr. McIntosh said she had been speaking with women in their 30s and 40s who either have embryos or are counting on IVF to help them conceive and who have been rattled by the decision.

“Women already get that this is enormous and terrifying,” she said.

Anti-abortion groups such as Concerned Women for America have praised the ruling. But it has been viewed with alarm by some Republicans who argue that IVF and other fertility treatments are pro-family and should not be lumped in with terminating pregnancies.

Republican governors such as Brian Kemp of Georgia, who signed a ban in 2019 restricting abortions in the state to six weeks, have come out in support of IVF treatments.

Republican presidential candidate Nikki Haley, a strong opponent of abortion, spurred confusion about her position on the Alabama ruling, initially suggesting she agreed but later saying that she does not want to restrict fertility options.

“We don’t want fertility treatments to shut down,” she said on Feb. 22.

Strong IVF support in polls

Recent polls conducted by Republican strategist Kellyanne Conway, who worked in the Trump White House, and shared with Reuters showed widespread support for IVF and fertility treatments, even among those who oppose abortion.

According to Ms. Conway’s firm, 85% of all respondents and 86% of women support increasing access to fertility-related procedures, and services for individuals facing challenges in conceiving, including 78% of people who consider themselves anti-abortion, and 83% of evangelicals.

More than 2% of all births in the U.S. occur as a result of assisted reproductive technology, mostly through IVF, according to the Centers for Disease Control and Prevention.

IVF treatment typically involves the creation of multiple embryos to maximize the chance of a successful pregnancy, leaving some unused and eventually destroyed as medical waste.

But the ruling on Feb. 16 held that such embryos are children and people can be held liable for their destruction.

On Feb. 23, the National Republican Senatorial Committee, an arm of the party that supports Senate campaigns, warned candidates in competitive races of the danger posed by the ruling, citing polls such as Ms. Conway’s.

“When responding to the Alabama Supreme Court ruling, it is imperative our candidates align with the public’s overwhelming support for IVF and fertility treatments,” said the memo from the NRSC’s executive director, Jason Thielman.

Dan Conston, the executive director of the Congressional Leadership Fund, a political action committee that backs House Republican candidates, agreed.

“It’s useful and important for swing district Republicans to show empathy, sympathy and clearly voice support for consensus positions like IVF,” Mr. Conston said in a statement.

Democrats pledged not to let Republicans off the hook.

“Republican Senate candidates have spent years opposing women’s right to make their most personal decisions about their health care and their families, and voters will hold them accountable for their record,” said David Bergstein, a spokesperson for the Democratic Senatorial Campaign Committee.

Greer Donley, a University of Pittsburgh law professor who focuses on abortion law, said the Alabama decision may persuade voters that Republicans will push for further restrictions on reproductive rights if given the chance.

“This is truly the world we’re in now,” she said. “I think it is really opening the public’s eyes to the consequences here.”

This story was reported by Reuters. Brad Brooks reported from Longmont, Colorado. Additional reporting was contributed by Nandita Bose.