Alabama's anti-IVF ruling laid bare the hypocrisy of the Supreme Court's stance on abortion

By ruling that government must stay out of family planning decisions, a Supreme Court case far older than Roe could bring both sides together

In February, the Alabama Supreme Court ruled that extrauterine embryos frozen for in vitro fertilization (IVF) are children under state law. The court reasoned that life begins at conception, regardless of whether the “child” is located in a human uterus or a cryogenic tube. Thus, that court reasoned, the government must protect the fetus, even if it means prohibiting the destruction of embryos created for IVF use.

The ruling set off a firestorm of conservative backtracking, and the Alabama legislature passed a law restoring access to IVF clinics a few weeks later. The debate is far from over because the U.S. Supreme Court’s reversal of Roe v. Wade in Dobbs v. Jackson Women’s Health Organization muddied the waters on whether a fetus is entitled to the same protections as born humans.

The Court just heard oral argument on a challenge to the Food and Drug Administration’s longstanding approval of the drug mifepristone for use in terminating pregnancies—as well as treating spontaneous miscarriages and ulcers. The Court is likely to reject that case because the plaintiffs have no right to bring it under Article III of the Constitution—but their lawyers never would have had the audacity to try before Dobbs.

Meanwhile, the Court allowed Idaho’s near-total abortion ban to remain in effect while it hears a case challenging the law as in conflict with the federal Emergency Medical Treatment and Labor Act, which requires hospitals to provide “necessary stabilizing treatment” to patients, including those who are pregnant. Idaho’s “Defense of Life Act” would make it a crime for “every person who performs or attempts to perform an abortion”—even if a pregnant person’s health is greatly endangered. The U.S. Court of Appeals for the Ninth Circuit stayed the Idaho law, but was reversed.

Hear that again: The Supreme Court sided with Idaho’s abortion ban over the life of women while it decides whether an Act of Congress protecting women’s lives still holds sway after Dobbs. This is deeply, deeply troubling stuff.

But after the IVF Decision, there may be a way out of this: A little-known case from 1923 called Meyer v. Nebraska. Read on…

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