Let’s not thank Alabama

I am not thankful. Slightly bemused, perhaps. Hugely worried, certainly. And, mostly, frightened. A few weeks ago Alabama’s highest court ruled that frozen embryos outside the womb were children and could not be discarded. 

A number of commentators who staunchly defend women’s rights have taken to commending the conservative court for “awakening the American public” to the contorted definitions of personhood of what we can now label the “so-called” pro-life camp. “So-called” because the decision has made it far more difficult for Alabamans to procreate. That is, to have children, or to “give life.” That is the same camp that finds it easy to ban abortions and easy to ignore that women die because of the bans. 

Almost immediately after the Alabama Supreme Court decision, fertility clinics across the state shut down their in-vitro operations, dashing hopes of hundreds. 

Republicans are scrambling to create legislative workarounds to exempt IVF treatments from the ruling. We could all enjoy the show. 

But we have to face the facts. This ruling strengthens the fetal personhood movement and discounts the effects on women’s reproductive health and rights. At the same time, it undermines the ability of all those who need assisted reproductive technologies to have children. If all embryos are children, or “little people” as one Justice put it, then that applies to frozen human embryos in a petri dish as well as unborn fetuses in the womb. 

The court ruling does raise two paradoxes, however: The first paradox is that in the name of the “right to life,” the ruling undermines political support for “right-to-life” camp. Infertility is widespread. We all know someone who has needed help having children (often, we have ourselves). According to recent polling by the GOP pollster Kellyanne Conway, IVF is supported by 86 percent of all voters, including 78 percent of pro-life voters, and 83 percent of evangelical voters. Furthermore, IVF is expensive. Many upper- and middle-class voters must be among those who support IVF. There’s a lot of political capital at stake here. Republicans cannot discount the IVF constituency. 

The second paradox is that as they scramble to salvage IVF from the wreckage of the Alabama Supreme Court’s decision, Republicans are forced to redefine human life. Bills carve out “extra uterine embryos” (which the court considered extra uterine children) from the laws applying to embryos in the womb. Now, the whether or not an embryo is an actual rather than a potential “child” depends on where it is situated. So, does “life” really begin at conception? What, in fact, is “conception”?  

We might follow these conceptual gymnastics with curiosity but I look on them with fear. Because what is being said is that, whatever the status of the embryo in the lab may be, once it is in a woman’s body, it’s a child. And so, we are back to square one: Abortion is tantamount to the annihilation of another living being, and no women can claim for herself the right to determine whether or not to continue her pregnancy. 

We can hope that this ruling will mobilize coalitions who rely on access to IVF — from LGBTQ people to disability rights activists — and who care about reproductive rights for all. A strange cohort of unlikely bedfellows that even includes the former president Donald Trump may also emerge as Republicans try to protect themselves from the impact of Alabama’s Supreme Court’s decision. But a bill co-sponsored by Tammy Duckworth (D-Ill.) called the Access to Family Building Act that would have protected access to IVF was rejected by Republicans. 

Carve-outs that protect IVF may not easily pass. There is a real risk that the Alabama decision will spread to other states, which would result in fertility clinics shuttered and put in jeopardy the hopes of thousands that will be barred from IVF. But even if access to IVF is restored, it will not repair the harm that has been done to reproductive rights. The Alabama court has galvanized not just pro-choice advocates on the left, but also anti-abortion rights crusaders on the right. At least 15 states already have laws on the books giving a fetus the same rights as a person. Abortion rights are further endangered. 

Election years tend to hold up a funhouse mirror to debates around divisive issues like the right to life. This year promises to be no different. The pro-choice left should not rejoice at this decision. Rather, we must mobilize to make our case forcefully before what happens in Alabama happens all across the country. 

The best way to truly protect life is to make it easier and safer for people to have children, and to ensure that those who do not want to have them can choose not to. 

Yasmine Ergas is director of the Gender & Public Policy Specialization at Columbia University’s School of International and Public Affairs.