Two Alabama families at the center of a wrongful death lawsuit that led to a moratorium on in vitro fertilization procedures in the state have asked a judge to overturn a new law that protects clinics and doctors from civil and criminal liability.
Their challenge to the law raises the possibility that access to IVF in Alabama could once again be at risk and could further inflame tensions across the country over whether to enact protections for IVF as influential Christian conservatives seek to curtail access to the popular reproductive treatment.
The Alabama Legislature swiftly passed the shield bill in early March after the state Supreme Court stepped in and ruled that frozen embryos can legally be considered children. Families had sued over the mistaken destruction of embryos at a mobile clinic in 2020.
Several clinics have closed to avoid the threat of lawsuits, compounding the emotional, financial and physical toll of fertility treatments for Alabama families who are suddenly left in medical limbo.
The swift passage of the shield law allowed clinics to reopen and resume embryo transfers, but it did not explicitly address the legal question of “fetal personhood” raised in the state Supreme Court decision, and many in the Republican-controlled Legislature acknowledged a more permanent solution would likely be needed.
Following the clinic’s move this week to dismiss the wrongful death lawsuit, the families argue that the SHIELD law violates their constitutional rights, including equal protection, due process and the Alabama Constitution’s “guarantee of life, the right to procreate, and the right to relief for the wrongful death of such child.”
“Medical errors happen,” the families’ lawyers wrote, “and when they do, people suffer terribly. Congress should not have rushed to judgment and provided blanket civil or criminal immunity.”
The families argued that because Alabama voters voted to “recognize and uphold the sanctity of unborn life and the rights of the unborn” in the state constitution, the only way to change the shield law is through another constitutional amendment.
The case could reach the state Supreme Court, where Chief Justice Tom Parker, in the final days of his term, issued a fierce theological opinion warning that “the unjust destruction of human life invites the wrath of a holy God.”
The new challenge to the shield law comes as the Southern Baptist Convention, the nation’s largest Protestant denomination, voted this week at its national convention to oppose the use of in vitro fertilization. The Southern Baptist Convention’s public policy arm had previously urged the state’s Republican governor, Kay Ivey, to veto the law as a “thoughtless response to a problematic situation.”
IVF has also become a tricky political issue for Republicans, who have struggled to reconcile their longstanding belief that life begins at conception with their overwhelming support for IVF treatment, while Democrats have sought to link the repeal of Roe v. Wade and the end of the constitutional right to abortion with efforts to more broadly regulate access to reproductive health care.
Sen. Katie Britt, one of Alabama’s two Republican senators, is one of several conservatives who have sought to counter claims that Republicans don’t support reproductive health care, sponsoring a bill that would block Medicaid funding to states that ban IVF treatments.
But efforts to fast-track that bill and push for a separate bill that would have tightened access to fertility treatments died in the U.S. Senate this week. And while the city of Montgomery, Washington, and Republican lawmakers on the campaign trail are scrambling to reaffirm their support for IVF, anti-abortion movements across the country are also working to restrict access to fertility treatments.
Alain Delaquerière contributed to the research.
