When Alabama’s Supreme Court defined frozen embryos as children, the shock and confusion was immediate. Major hospitals pulled fertility services and would-be parents scrambled for clarity on what would happen next.
The debate over reproductive rights in America has long been driven, in part, by opposition to abortion from Christian groups – but this ruling has divided that movement and ignited debate about the role of theology in US lawmaking.
Margaret Boyce is soft-spoken, a private person, and certainly not – in her words – a “crier”.
She had been taking fertility drugs for 10 months and was days away from her first appointment for in-vitro fertilisation (IVF) when the justices of Alabama’s top court upended her life.
“The journey to becoming parents is different for every single couple – mentally, emotionally and financially,” she said, welling up.
“This ruling has added more unnecessary anxiety to something that is already so hard.”
For a devout Christian like Margaret, the ruling – given its consequences for what she sees clearly as a process to create life – is even more difficult to comprehend.
“God,” she said, “tells you to go forth and be fruitful and multiply.”
IVF is a difficult and lengthy treatment, involving the fertilisation of a woman’s eggs with sperm in a lab to create a microscopic embryo. The fertilised embryo is then transferred into a woman’s uterus, where it may create a pregnancy – but a successful outcome is not guaranteed.
Embryos are often frozen or eventually destroyed as part of IVF, which accounts for around 2% of US pregnancies.
The Alabama court ruled that an existing law – wrongful death of a minor – covers not just foetuses in the womb, but embryos held in a lab or storage facility too.
It did not explicitly restrict or ban IVF, but it has still created deep uncertainty for clinics and medical workers who handle embryos and fear prosecution. In recent days the office of the state’s attorney general said he had “no intention” of pursuing criminal charges against IVF clinics – but one clinic told the BBC this statement lacked detail and did not quell their fears.
While the majority of the justices rooted their ruling in law, Chief Justice Tom Parker also had a higher authority in mind, repeatedly invoking scripture in explaining his decision.
The people of Alabama, he wrote in a concurring opinion, had adopted a “theologically-based view of the sanctity of life” in their state constitution.
Delving into religious sources from classic Christian theologians like St. Thomas Aquinas and also a modern conservative Christian manifesto, he concluded that “even before birth, all human beings have the image of God, and their lives cannot be destroyed without effacing his glory”.
Some anti-abortion groups celebrated the explicit use of scripture in Justice Parker’s opinion to justify what for them was a momentous decision.
Tony Perkins, president of evangelical activist group the Family Research Council, described it as “a beautiful defence of life”.
But the chief justice’s theocratic justification has left Margaret puzzled. She doesn’t believe in abortion but she also struggles to see a frozen embryo as a living person. For her, life begins with a heartbeat.
“Nobody understands more that an embryo is not a child,” she said, before taking a pause, “than the person yearning for that embryo to be a child.”
US courts do sometimes make decisions that seem to be based on religious premises, said Meredith Bender, a professor at the University of Alabama School of Law.
The ruling was however “not an outlier” for a conservative court in a red state, said Kelly Baden, the vice president for public policy at the Guttmacher Institute, which tracks abortion legislation across the US.
“We do see that many elected officials and judges alike are often coming at this debate from a highly religious lens,” she said.
While the Alabama state Supreme Court is not appointed by the US president, more than 200 judges were appointed by Donald Trump to federal courts during his four-year term, winning him lasting support from American evangelicals.
Since that decision in 2022 re-opened a national battle over reproductive rights, courts in Missouri have quoted Biblical teachings to justify restricting abortion rights and a Trump-appointed judge in Texas who previously worked for a Christian legal organisation tried to impose a nationwide ban on Mifepristone, a commonly used abortion pill.
While many Republican politicians comfortably agree with such rulings, restrictions on abortion imposed by conservative courts have proved a potent campaign issue for Democrats in recent elections, including the 2022 midterms.
The Alabama decision, made by Republican judges and affecting fertility treatments widely supported by the US public, went one step further, prompting immediate fear of a political backlash in a presidential election year.
Donald Trump himself, the clear frontrunner in the Republican nomination race, came out strongly in support of IVF, calling on Alabama lawmakers to preserve access to the treatment. His last remaining rival Nikki Haley at first appeared to support the ruling, but then backtracked.
“It’s a win philosophically for the pro-life movement because it carries on the pro-life recognition of unborn life,” said Eric Johnston, president of the Alabama Pro-Life Coalition.
“But you get into a very difficult situation, where you have this medical procedure that’s accepted by most people, and then how do you deal with it? That’s the dilemma.
“I agree with the opinion overall – I think it’s well written opinion from the legal side and from the medical side,” he added.
“But I think the pro-life community in general supports IVF, and I’ve known and worked with many people who have had children via IVF. And at the same time, they think abortion is wrong. This issue is so different from abortion, but it has to do with life.”
What next for fertility patients in Alabama and beyond?
For patients in the deep-south state, the last week has been one of panicked phone calls to clinics, emails to local lawmakers and a rush by some to try and transfer frozen embryos out of the state.
Rodney Miller, 46, and his wife Mary Leah, 41, spent a decade trying to have children, before IVF allowed them to give birth to a set of twins 18 months ago, who were adopted as frozen embryos.
He said he “thanks the Lord for the advances in science and medicine” that made that possible.
The couple are now going through the process again, and waiting to see if two embryos transplanted this week will develop into a pregnancy.
“This is not a win [for the Christian right],” says Rodney, who works for Carrywell, an organisation that supports families through infertility.
“It’s the classic case of you won the battle but lost the war. Fewer children will be born because of this unless things change.
“How did we become a state where if you want to terminate a pregnancy, you have to leave the state and if you want to initiate a pregnancy, via IVF you [also] have to leave the state?”
Foetal personhood bills, which enshrine the idea that life begins at conception, have been introduced in more than a dozen states.
But these bills, while pushing the idea that a foetus or embryo is a person, don’t explicitly relate that to the context of IVF, said Kelly Baden of the Guttmacher Institute.
The Alabama ruling – with its implications that go far beyond abortion access – does not therefore constitute a trend, she said.
Alabama family lawyer Ashleigh Meyer Dunham, who has used IVF herself, has been working with a large number of cases affected by the ruling. She said she was “terrified” that fertility patients in other states could eventually be affected.
“I think the biggest concerns are that people elsewhere forget about us and they think, ‘Oh they’re just the conservative state, and they’re all country bumpkins. Don’t worry it will never happen here.’
“And the next thing you know, it is happening in other states that are ultra-conservative.”
Because the Alabama ruling involves an interpretation of state, not federal law, it is unlikely to reach the US Supreme Court. Currently a bill is going through the state house in Alabama, introduced by Democrats, which would aim to effectively pause the ruling and allow treatments to resume as before.
Republicans are expected to propose their own bill. If they do, they have to find a way to balance a divided religious constituency, with some celebrating the court’s ruling and others disturbed by its potential implications for IVF.
Margaret is praying that lawmakers find a solution.
She takes a breath.
“But this has got me fired up. It is all I can think about now.”
