On February 16, 2024, in a scripture-filled concurrence for LePage v. The Center for Reproductive Medicine, Alabama Supreme Court Chief Justice Tom Parker asserted three ideals that form the “theologically based view of the sanctity of life adopted by the people of Alabama”: “(1) God made every person in His image; (2) each person therefore has a value that far exceeds the ability of human beings to calculate; and (3) human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself.”
In the case, an 8-1 majority decided that “the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location.” While one might expect abortion opponents to applaud this decision, LePage has created fierce competition between two flanks of the Christian right: those who want to protect “life” in its every form and those who support creating life through methods such as in vitro fertilization (IVF). In a post-Dobbs v. Jackson Women’s Health Organization world, Republican leaders are stuck in a quagmire, forced to abandon their longtime anti-abortion allies on the issue of IVF for the sake of broader public opinion.
LePage was filed by three couples who underwent IVF treatment at a Mobile, Alabama fertility clinic. After each of the couples had given birth to healthy babies, they paid to cryo-preserve the additional embryos created during the IVF process for potential use in later pregnancies. However, the frozen embryos were accidentally destroyed after a patient opened one of the freezers in which they were stored. The plaintiffs posited that the destruction of these embryos constituted a wrongful death, violating the 1872 Wrongful Death of a Minor Act. The Alabama Supreme Court agreed, transforming extrauterine embryos from legal property into persons entitled to rights.
In the week after the LePage decision was released, three IVF providers in the state—including the defendant in the case, The Center for Reproductive Medicine at Mobile Infirmary—halted their services for fear of legal repercussions. The IVF process often creates excess embryos, some of which might ultimately be disposed of due to inviability, genetic abnormalities, or patients’ decisions not to use them. However, after the Court’s decision, any embryos discarded in the state of Alabama will be legally considered murdered children. Employees at the University of Alabama at Birmingham, one of the clinics that paused its services, announced that they were “saddened that this will impact our patients’ attempt to have a baby through IVF, but 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.”
While this decision caused consternation in the medical world as IVF centers in Alabama contemplated their futures, it also sparked debates in Republican circles. Since the largely unpopular Dobbs decision, Republican leaders have struggled not to be cast as extremists in the abortion debate. IVF is a hugely popular procedure supported by 86 percent of Americans and 58 percent of Republican voters, so supporting it enables Republican lawmakers to appear on the side of popular, common-sense policy. Moreover, in a world in which 42 percent of Americans say they or someone they know has used fertility treatments, IVF is an essential means of procreation. The GOP has historically been a family-values party and thus wishes to support modern medicine that can aid family expansion.
Consequently, in the weeks following the decision, congressional Republicans jumped to clarify their support for IVF procedures and those who pursue them. Senate GOP campaign materials advised candidates to “clearly state support for IVF” and “publicly oppose any efforts to restrict access” to it. Senator Roger Marshall (R-KS) expounded that “there’s nothing more pro-family than supporting the birth of babies…I am absolutely certain that in vitro fertilization is a great thing, that God has given us this technology and we should use it.” In the Republican response to President Joe Biden’s State of the Union address, Senator Katie Britt (R-AL) said, “[W]e strongly support continued nationwide access to in vitro fertilization. We want to help loving moms and dads bring precious life into this world.” Three weeks later, the Alabama state legislature affirmed its support for the treatment, passing a bill to protect IVF providers from legal liability and rendering moot the anti-IVF implications of the LePage ruling.
However, while members of the Republican Party were vocalizing their support for IVF, anti-abortion political action groups across the country were celebrating the LePage decision. Following the ruling, Lila Rose, president and founder of the pro-life group Live Action, applauded the Court for recognizing that “[e]ach person, from the tiniest embryo to an elder nearing the end of his life, has incalculable value that deserves and is guaranteed legal protection.”
Rose’s tone quickly soured after Alabama Governor Kay Ivey signed the bill shielding IVF providers from liability; she lamented, “Tragically, the Governor of Alabama has given the IVF industry a license to kill.” She further stated, “Politicians cannot call themselves pro-life, affirm the truth that human life begins at the moment of fertilization and then enact laws that allow the callous killing of these preborn children simply because they were created through IVF.” Pro-life groups are even running ads against Republican representatives who vote to protect IVF, employing the disturbing images of scalpels, gore, and infants commonly found in anti-abortion campaigns. While this imagery is typically levied against pro-choice Democrats, anti-abortion groups are now attacking the pro-life Republicans who were once their allies. The fact that anti-abortion groups are targeting politicians they would typically support emphasizes the tension caused by the IVF issue. By attempting to stand on the side of IVF and public opinion, GOP leaders are threatening to shatter their holy union with the anti-abortion lobby—a union that has existed since the Roe v. Wade decision in 1973. Perhaps this is a politically savvy move: Although the anti-abortion Christian right have been staunch supporters of the GOP establishment, their extreme views are by no means popular among the broader electorate. On the other hand, might losing such a loyal voting bloc hurt the Republican political cause? The full impacts of this fissure remain to be seen in November.