How an Alabama Supreme Court ruling that frozen embryos are children impacts IVF

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• William Brangham:

  A decision from the Alabama Supreme Court has alarmed doctors, patients and reproductive rights advocates.

  On Friday, the court ruled that frozen embryos created through in vitro fertilization, or IVF, are legally children and thus protected. The designation of personhood could have significant repercussions for reproductive rights.

  Stephanie Sy looks at the questions raised by this ruling.

• Stephanie Sy:

  William, this issue made its way to Alabama's Supreme Court after three families sued when their frozen embryos were taken from a clinic and then accidentally destroyed. They sued under the state's Wrongful Death of a Minor Act.

  Alabama's High Court asserted the law applies to all children, born and unborn, including, to the shock of many, frozen embryos. Today, the University of Alabama Birmingham Health System said it is pausing IVF procedures because of a fear of prosecution.

  For more, I'm joined by Mary Ziegler, a legal historian and expert on reproduction and health care.

  Mary, thank you, as always, for being with the "NewsHour."

  About 2 percent of all babies born in this country are conceived through assisted reproductive technology. What are the concerns about how this decision will affect reproductive rights and options?

• Mary Ziegler:

  Well, I think the decision casts a shadow on a lot of options that usually are available through IVF.

  So, for example, if people have extra embryos, they can no longer be destroyed. They can no longer be donated for research in Alabama. It's not even clear what the legality of storing them would be or if potentially they will need to be implanted.

  And then there's just the simple fact, as we have seen with the University of Alabama in Birmingham, the threat that, if embryos are inadvertently damaged or destroyed, that could lead to lawsuits or even to criminal prosecutions, which I think is going to have a tremendous chilling effect on fertility care in the state.

• Stephanie Sy:

  Mary, I want to read an excerpt from the chief justice's concurring opinion.

  "The people of Alabama," he says, "have declared the public policy of this state to be that unborn human life is sacred. We believe that each human being from moment of conception is made in the image of God created by him to reflect his likeness."

  So the chief justice there invoking Scripture from the Bible in a legal ruling. What is your take on that?

• Mary Ziegler:

  Well, I think this is a sign of the ascendance of the Christian legal movement, which I think is distinct from what we're used to thinking of, right? It's not the Federalist Society.

  It's part of a conservative legal movement that asserts that the Constitution is a Christian document, that the nation is a Christian nation and that there should be no daylight really between church and state when it comes to interpretation of the law.

  And the chief justice was making the point that, in his view, the people of Alabama have already embraced that position. It's striking to see this in a court ruling, right? This is not coming from a social movement. And I think it'll shift the Overton window and make it more likely that we will see more language of this kind from other courts.

• Stephanie Sy:

  The overturn — Overton, of course, being what overturned Roe v. Wade.

  We spoke to an OB-GYN and fertility specialist, Dr. Aimee Eyvazzadeh, about this. And she said she is horrified by this decision and what it will mean.

• Dr. Aimee Eyvazzadeh, Fertility Specialist:

  Embryos are precious cells. They're very precious. They have the potential to turn into a baby, the potential. But an embryo is not a child, is not a baby. They have a chance to become one. But anyone who knows even the smallest bit about IVF knows that an embryo is a chance for a baby.

  The concern here is that patients who are doing testing in Alabama, they might be forced to use embryos that they didn't want to use. They might not be allowed to freeze embryos and they might have to transfer everything they have. It might change how you do IVF, where people will be freezing eggs and only creating embryos enough to transverse, they have none left over, or what we're seeing now, IVF is going to halt completely.

• Stephanie Sy:

  Those are some of the concerns that you also brought up.

  But 11 states have passed laws defining personhood as beginning at fertilization. So should women who are doing IVF or seeking IVF treatment be worried that this Alabama decision may affect them?

• Mary Ziegler:

  I think it's hard to say, right?

  I mean, so there are some states where personhood is just — it's not clear if it's legally operative. It's sort of a policy that's been declared by the state, but it's unclear how much how teeth — how — if it has teeth in terms of actually affecting people concretely.

  But I think, again, because some court had to be first, someone had to be the first to say we think that a fetus or an embryo is a person, and now that the Alabama Supreme Court has done this, I think we would expect to see either legislators or state courts in equally conservative states with similar personhood policies being more willing to make the same kind of move.

  So I think this is something that should concern people who are pursuing infertility treatment in all of those states and indeed elsewhere in the country too.

• Stephanie Sy:

  Does it end with this decision, or is there any legal pathway forward, especially given that Roe v. Wade has been overturned?

  Does this run afoul at all of any federal rights or other constitutional rights?

• Mary Ziegler:

  It's hard to say, right?

  I mean, the Alabama Supreme Court was trying pretty hard to make this a state court ruling and to say this was about the interpretation of the state wrongful death of a minor law, which is not something ordinarily that the U.S. Supreme Court would become involved in.

  You could imagine federal constitutional claims raised by people who want to pursue IVF. But this is a very conservative U.S. Supreme Court that's going to be unlikely to recognize new reproductive rights under federal law, like a right to procreate. So I think, while that's theoretically possible, the Alabama Supreme Court is likely to be the last stop in this case.

• Stephanie Sy:

  Mary, you are really an expert on what has happened since the overturning of Roe v. Wade. Where would you put this decision in the spectrum of reactions we have seen since the Overton decision?

• Mary Ziegler:

  Well, I think it's a big indicator of what's coming next, right?

  So I think a lot of Americans believe that when the Supreme Court overturned Roe v. Wade in the Dobbs decision, that that was the end, right, that the people who believed that a fetus or an embryo was a person had won and they would move on to other issues.

  In fact, I think this decision is a reminder that personhood, right, this idea that a fetus or embryo is a rights-holding person, has been a motivating reason for many people to join the anti-abortion movement really since its inception in the 1960s. And I think we're going to see much more of this.

  So this is sort of a sign of what's to come, in addition to something I think that will have a tremendous effect on people who are seeking to become parents in the state of Alabama.

• Stephanie Sy:

  Mary Ziegler, thank you.

• Mary Ziegler:

  Thanks for having me.