IVF ruling puts reproductive rights back at heart of US politics

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A US state’s court ruling that frozen embryos should be considered children has thrust reproductive rights back to the forefront of the 2024 presidential election, prompting Donald Trump to insist that he supports access to in vitro fertilisation.

In a decision last week, the Alabama Supreme Court said that “unborn children are ‘children’ . . . without exception based on developmental stage, physical location, or any other ancillary characteristics”.

The order stemmed from wrongful death lawsuits brought by couples who claimed embryos they generated as part of IVF treatments were destroyed by a patient at their fertility clinic.

Critics have argued that “foetal personhood”, or legally recognising the unborn as children, threatens women’s rights.

At least two fertility providers in Alabama have partially halted their treatments as a result of the 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,” said the University of Alabama at Birmingham, which has put some treatments on hold.

While the order pertains to Alabama, it may embolden plaintiffs, legislatures and courts in other states to follow suit.

Democrats were quick to put the blame on Republican politicians who have pushed for stricter limits on access to abortion after the US Supreme Court overturned Roe vs Wade, the landmark 1973 decision that enshrined the constitutional right to an abortion, in 2022.

But Trump, the former president who is closing in on the Republican nomination, insisted in a social media post on Friday that under his leadership, the party would “always support the creation of strong, thriving, healthy American families”, including “supporting the availability of fertility treatments like IVF in every state in America”.

Trump called on the state legislature in Alabama to “act quickly to find an immediate solution to preserve the availability of IVF” in the state.

Trump’s intervention came hours after the National Republican Senatorial Committee, the campaign arm focused on electing Republicans to the US Senate, issued a memo calling on its candidates to “clearly and concisely reject efforts by the government to restrict IVF”.

The memo cited polling conducted by Kellyanne Conway, Trump’s 2016 presidential campaign manager, showing that 85 per cent of Americans support increasing access to fertility-related procedures and services.

Jason Thielman, executive director of the NRSC, said the Alabama ruling was “fodder for Democrats hoping to manipulate the abortion issue for electoral gain”.

Voter concerns about abortion access supercharged Democratic victories in the 2022 midterm elections, as well as in off-year elections in places such as Kentucky. In that traditionally Republican state, Democratic governor Andy Beshear cruised to re-election last year thanks in part to a campaign that attacked Republican efforts to ban abortions with no exceptions for victims of rape or incest.

President Joe Biden, who is gearing up for a rematch against Trump in November, has also made abortion rights a pillar of his re-election message.

On Thursday, Biden framed the decision in Alabama as part of a broader attack on women’s rights and an erosion of legal protections around reproductive care.

Biden said the ruling “put access to some fertility treatments at risk for families who are desperately trying to get pregnant”, adding: “The disregard for women’s ability to make these decisions for themselves and their families is outrageous and unacceptable.” 

“Make no mistake: this is a direct result of the overturning of Roe vs. Wade,” Biden added. “My message is: The vice-president and I are fighting for your rights . . . and we won’t stop until we restore the protections of Roe vs Wade in federal law for all women in every state”.

The decision by the US Supreme Court to overturn Roe was widely seen as a potential gateway to other legal decisions impinging on reproductive rights. 

The court found that states could set their own policies on abortion as well as “when life begins”, said Mary Ziegler, a professor at UC Davis School of Law. It “opened the floodgates” for the “pursuit of [foetal] personhood”, she added.

Trump has repeatedly taken credit for his role in overturning Roe, noting that he appointed the three justices who tipped the balance of the nine-justice bench in favour of conservatives. 

But he has also taken issue with some of the most conservative anti-abortion laws in the country, and shied away from endorsing the idea of a national abortion ban. Last year Trump called a ban on abortion after six weeks of pregnancy in Florida a “terrible mistake”. 

The New York Times reported last week that Trump has privately told advisers that he likes the idea of a national ban on abortions after 16 weeks of pregnancy, with exceptions in cases of rape or incest, or to save the life of the mother.

Democratic campaign operatives say Trump’s shift in messaging will do little to win over independents and swing voters, especially women.

“In politics, when you straddle a fence, it does not end well,” said Mary Anne Marsh, a Democratic strategist. “[Trump] wants it both ways. He wants credit for ending abortion, and he wants to get back in the White House by saying: ‘Oh, well, I am not really ending it’.”

Other Republicans have similarly struggled to carve out a more moderate position on abortion rights in recent months.

Nikki Haley, the former US ambassador to the UN who is running a long-shot campaign to stop Trump from being the Republican nominee, appeared to side with the Alabama court in an interview earlier this week, telling NBC News that frozen embryos created through IVF were “babies”.

“When you talk about an embryo, you are talking about, to me, that’s a life. And so I do see where that’s coming from when they talk about that.”

But Haley later rowed back her comments, telling CNN: “I didn’t say that I agreed with the Alabama ruling.” 

Still, Democrats argue that the fallout from the Alabama ruling is just the latest example of Republicans losing ground with voters when it comes to abortion and reproductive rights.

“There is no way to get out of this,” said Marsh. “This train, they started it down the track, and it is barrelling to the election, and women are going to stop it.”

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