In a ruling last week that may be as consequential as the reversal two years ago of Roe v Wade, the landmark case that legalised US abortion, the Alabama supreme court has followed up with a radical decision which threatens another pillar of reproductive rights, in-vitro fertilisation (IVF).
In LePage v Mobile Infirmary Clinic, Inc, the court found that a frozen embryo produced by IVF is “a child” whose inadvertent or deliberate destruction may constitute wrongful death or homicide. In doing so it has placed a question mark over the ability of childless parents to access IVF in the state, and probably later elsewhere.
The justices found that three couples could pursue a wrongful-death lawsuit against a Mobile clinic over a 2020 episode in which a hospital patient removed embryos from tanks of liquid nitrogen and dropped them on the floor.
Two local hospitals have already closed their IVF programmes while others are considering their position, fearful of civil or criminal charges over surplus embryo destructions, widely accepted as an inevitable part of the IVF process. Women are asking where they stand legally if they have not implanted all of the embryos they may have developed through the IVF process.
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The decision is seen as a major victory for the anti-abortion lobby whose onward march in the wake of the supreme court’s Roe ruling already means 21 states now ban abortion or restrict it earlier in pregnancy than the standard set by Roe.
Alabama’s chief justice, Tom Parker, justified his ruling in explicitly Biblical terms. “Human life cannot be wrongfully destroyed without incurring the wrath of a holy God,” he wrote in a concurring opinion invoking Genesis and the prophet Jeremiah. “Even before birth all human beings have the image of God, and their lives cannot be destroyed without effacing his glory.”
The court’s insistence on the church view that human life begins at conception – even in a Petri dish – and instantly acquires equivalent rights to those of the developed person conflicts with the now more widely accepted view that links personhood to viability, the ability of the foetus to survive independently outside the womb. Such a perspective now frames debates worldwide about, not whether, but when time limits should be set for abortion.
The Alabama verdict may have cheered the anti-abortion lobby, but many Republican politicians will be less pleased, as they eye November’s presidential and congressional elections. They have sought to distance themselves from hard-line anti-abortion views that have already proved vote losers, particularly among women. Donald Trump is ploughing his own furrow, however, privately hinting he will back a national ban on abortions after 16 weeks, despite the case made against Roe that the issue should be left to the states.