MICHAEL MEEROPOL | REPRODUCTIVE RIGHTS | First, they came for abortion, now they’ve come for in vitro fertilization

Alabama Supreme Court. Photo by Jeffrey Reed / Creative Commons

By Michael Meeropol | The Rag Blog | April 22, 2024

The following is an expanded version of a commentary delivered by Michael Meeropol, Professor Emeritus of Economics at Western New England University, over WAMC-FM on March 1, 2024. It has been adapted for The Rag Blog by the author.

Michael Meeropol will be Thorne Dreyer’s guest on Rag Radio at 2 p.m. Friday, April 26, 2024, on KPFT 91.7-FM in Austin and streamed at KPFT.org. Post-broadcast, listen to the podcast of this show anytime, here.

By now it is hard to be outraged by the actions of Trump and his minions.  However, the decision by the Alabama Supreme Court which in effect shut down In Vitro Fertilization availability in that state was so shamelessly supportive of extreme right-wing Christian interpretations of the word of God it took my breath away.

But there is a silver lining.  That ruling has set off shock waves in the so-called Right to Life Movement because the MAGA extremist Chief Justice, Tom Parker, made explicit the “Christian Nationalist” ideas behind that decision:

Parker wrote:

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. [Alabama’s Sanctity of Life statute] recognizes that this is true of unborn human life no less than it is of all other human life–that even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.[i]

The journalist Elie Mystal discussed those implications in the Nation.

The word ‘God’ appears 41 times in Parker’s opinion, which also liberally quotes from the Bible, specifically the Book of Genesis…   Parker said he supports the ‘Seven Mountain Mandate’ which is a code from imposing Christian rule based on biblical precepts on the rest of society.  Folks, this is the chief justice of a state supreme court, and he is explicitly invoking fundamentalist Christian ideology to justify assigning legal liability and financial penalties to people who run afoul of Christian orthodoxy.[ii]

The extreme right wing of Christian Nationalism comes nowhere near to a majority opinion in the United States, but they have an extremely large megaphone because they provide the shock troops for the right-wing policies of the super-rich.  The billionaire class knows their policies which have led to increased inequality in the U.S. are unpopular, so they support extremist Christian Nationalism and in return, Christian nationalists vote for politicians who adopted policies that led to that explosion of inequality.[iii]

The billionaire class was rewarded when Donald Trump and Majority Leader Mitch McConnell packed the Supreme Court and the new majority took down Roe v. Wade.   Those billionaires didn’t expect that the floodgates opened by the ruling against abortion would affect members of the upper classes.  The audacity of the decision of the Alabama Supreme Court has awakened many well-off folks to the dangers to themselves personally.  (Even before Roe v. Wade, the rich were able to have abortions safely from the “right kind” of doctors — or go to Puerto Rico where it was legal.)

When the three IVF clinics in Alabama “paused” their IVF treatments, the affluent folks who might be inclined to support Republicans because of tax cuts and other benefits to rich people suddenly found that something they were used to using had run afoul of their electoral base.   Donald Trump and the Maga Republican crowd have catered to rich, privileged (mostly white) Americans with tax cuts and reduced regulations.  These are the same people who can afford IVF treatments.  According to national data, 90 percent of the patients accessing IVF procedures are white.  Given the extent of black poverty in Alabama, I’ll bet it’s even higher in that state.   No wonder when the fertility clinics in Alabama paused their IVF treatments right-wing Republicans fell all over themselves urging the Alabama Legislature to explicitly exempt IVF from the Supreme Court ruling.

But in attempting to carve out an exemption for IVF, the “right to lifers” are tying themselves up in knots.  Case in point, the “Life At Conception Act.”  That bill (HR 431) was introduced to the House on January 20, 2023 with 124 (Republican) co-sponsors.[iv]  Here’s where it gets interesting.  Many Republicans support IVF and are finding it extremely difficult to ”square the circle” between support for the Life at Conception Act and for IVF. [v] 

One Republican Senator tried.  She put it this way: “I]t could be justified to say that the rights of a child do not apply to an in vitro situation, that they would only apply in vivo.”  This same Senator, however, declined to endorse the need for federal legislation to protect IVF.[vi]

But it’s not that simple.  “On the one hand, Republicans maintain that they support the continued use of IVF, calling it both pro-family and pro-life. But on the other hand, many in the GOP agree with the central premise of the ruling that found that frozen embryos are children with equal rights, a contradictory position that now has them on the defensive on an issue that is supported by over 80% of Americans, including a majority of Republicans.”[vii]

The most important point to all this is that the Alabama ruling would have been impossible without the Supreme Court’s overruling of Roe v. Wade.   In that ruling, the majority referred to “fetal life,” “potential life,” and “unborn human being” enough times to excite the extremists in the pro-life movement who want to ban the IUD (which keeps fertilized eggs from attaching to a uterine wall) as well as IVF.  And the Alabama Court jumped right in.[viii]

Despite the fact that the Alabama State Legislature rushed through a “fix” to this issue, the only real way to “fix” it is to abandon the idea that an embryo is a person.   

A surefire test of the sincerity of those who claim to support IVF is how members of the Senate respond to the efforts of Senator Tammy Duckworth.  Senator Duckworth had both of her children using IVF and in the wake of the overthrow of Roe v. Wade, she introduced a bill in the Senate to protect IVF from laws that would define embryos and fetuses and people.

Asked whether any Republicans have joined her in support of that bill, the Senator replied, “I’ve spoken with them on this for well over four years now. And since the Alabama Supreme Court decision, it’s been crickets. I’ve not heard from a single Republican that I’ve contacted asking if they would co-sponsor this. And so, they’ve not come back to me since that decision.”[ix]

The so-called right-to-life movement is actually about controlling women’s freedom. There is great interest among some on the extreme right to go much further than merely giving states the right to regulate or abolish abortions.  Justice Clarence Thomas suggested that the Supreme Court should re-visit the rulings that gave people the right to use contraceptives and the legalization of same-sex marriage.  Those of us living in states where abortion is legal or even enshrined in our state constitutions need to know that there are plenty of members of Congress who would like a national ban on abortion.  And that will just be the beginning.  They are coming for our rights.  We have to fight back.

[i] The entire decision, including the dissent and the concurring opinion by Chief Justice Parker is available at https://publicportal-api.alappeals.gov/courts/68f021c4-6a44-4735-9a76-5360b2e8af13/cms/case/343D203A-B13D-463A-8176-C46E3AE4F695/docketentrydocuments/E3D95592-3CBE-4384-AFA6-063D4595AA1D

[ii] Elie Mystal, “Alabama’s IVF Ruling Is Christian Theology Masquerading as Law.” available at https://www.thenation.com/article/society/alabama-ivf-ruling/

[iii] A good book on this is still Thomas Frank, What’s the Matter with Kansas? published in 2004.   On the issue of the rise of the religious right, see David A. Hollinger, Christianity’s American Fate: How Religion Became More Conservative and Society More Secular,  (Princeton University Press, 2022).  On the economic policies that led to an explosion of inequality, see Michael Meeropol, Surrender, How the Clinton Administration Completed  the Reagan Revolution (University of Michigan Press, 2000)

[iv] The full details, including the list of co-sponsors, are available at https://www.congress.gov/bill/118th-congress/house-bill/431?s=1&r=67.  “This bill declares that the right to life guaranteed by the Constitution is vested in each human being at all stages of life, including the moment of fertilization, cloning, or other moment at which an individual comes into being.”   The summary also states that nothing in this bill will permit prosecution of a woman for the death or her unborn child. 

[v] See Riley Rogerson, “Republicans Struggle to Explain Away Their Hypocrisy on IVF,” The Daily Beast (March 4, 2024), available at https://www.thedailybeast.com/republicans-struggle-to-explain-away-their-hypocrisy-on-ivf?via=newsletter&source=DDMorning&user_emailA=e34224fbe0b7ae7eac485434278fa4fe&user_emailB=5ac14f57c867ede606a642e7ab55ee98a3a275cf2b656f1998b0780ee7e13cd0&utm_source=Sailthru&utm_medium=email&utm_campaign=240304-am-digest&utm_term=F%20List%20Daily%20Beast%20Newsletter%20AM

[vi] Senator Cynthia Lummis (R-Wyo) quoted in Igor Bobic and Alanna Vagianos, “ ‘A Quandary’: Republicans Hesitant To Back Federal Protections For IVF:  A new Democratic effort to pass legislation protecting access to in vitro fertilization, which is broadly popular, has put Republicans in a bind.” Huffington Post, February 27, 2024, available at https://www.huffpost.com/entry/ivf-alabama-republicans_n_65de30c5e4b005b85831e99b?utm_source=substack&utm_medium=email). 

[vii] Rogerson, op cit.

[viii] On this, see:  Jamelle Bouie “Samuel Alito Opened the Door to Reproductive Hell” New York Times, Feb 26, 2024: A18 available at https://www.nytimes.com/2024/02/23/opinion/alabama-embroyo-dobbs-reproductive-freedom.html.  Bouie writes in part: “Added up, the main effect of fetal personhood is to rob women of their right to control their own reproductive capacity and make a choice about when and whether to give birth.  It subordinates the actual personhood of a woman …. To the potential for personhood found in an embryo.  It is in effect a profound attack on the dignity and equality of women.  Proponents of fetal personhood may speak in the language of rights but this particular right is freedom retracting not freedom enhancing … It is not a coincident that the lawmakers spearheading the assault on abortion are …. [A]lso the same lawmakers waging a broader campaign to restrict the ability of people in their states to live and think as they please.”

[ix] See  https://www.npr.org/2024/02/27/1234158504/ivf-legislation-tammy-duckworth-alabama-supreme-court].  When Senator Duckworth tried to get the Senate to approve her bill under unanimous consent on Wednesday, February 28, a Republican Senator from Mississippi objected.   Majority leader Schumer has promised a roll call vote soon.