When a Failed Pregnancy Becomes a Crime

Last week, the Alabama Supreme Court handed down a ruling that could have devastating repercussions for families hoping to obtain in vitro fertilization treatment, or IVF. The court ruled that frozen embryos outside of the womb are “children,” in accordance with state law allowing civil litigation for the wrongful deaths of children and a 2018 constitutional amendment to protect the rights of “the unborn child.”

This 8–1 ruling protecting the rights of “extrauterine children” thus leaves clinics vulnerable to lawsuits. The lone dissenter, Justice Greg Cook, wrote in his opinion that “the main opinion’s holding will mean that the creation of frozen embryos will end in Alabama.”

The decision in Alabama raises concerns about the “criminalization of pregnancy outcomes,” said Kimya Forouzan, principal policy associate for state issues at the Guttmacher Institute, a research organization that supports abortion access. An outcome as common as a miscarriage could be viewed with suspicion; if an IVF treatment fails to take, that could not only be considered a physical failure of the mother but potentially a criminal one as well. Or, for the clinics that would provide IVF treatments, a power outage caused by a storm could be cause for liability.

The Alabama ruling was the latest salvo in a longtime campaign by abortion opponents to “establish personhood,” that is, to enshrine into law that life begins at conception. That battle has been ongoing in Alabama, where the 2018 constitutional amendment, ratified by voters, requires courts to “recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.” Last year, the Alabama attorney general said that women who use abortion medication could be prosecuted for violating a law written to protect children from meth-lab fumes.

“In the state of Alabama, for more than a decade, there have been efforts to stretch state laws and amend state laws to apply to fetuses and embryos, and to criminally punish pregnant women,” said Michele Goodwin, a professor at Georgetown Law and expert on abortion law. When the Supreme Court overturned Roe v. Wade in 2022, Goodwin continued, it emboldened state legislatures and courts “to either enact sweeping laws, or to bend precedent, to bend state constitutions, to bend legislation to suit what would be pro-natalist aims and anti-abortion aims.”

Restrictions to abortion access have particularly affected lower-income Americans, many of whom cannot afford to travel to another state to obtain the procedure. With the Alabama decision, a new subset of people—middle- to high-income families struggling with fertility issues—could face the consequences of limited reproductive care for the first time. (This week, the University of Alabama at Birmingham temporarily paused IVF procedures.)

“While there has been a targeting of poor people and their reproductive futures—women of color, certainly, and their reproductive futures—there are categories of Americans that have been able to experience parenthood because in significant ways they could afford to use these technologies,” said Goodwin. “Now what we see is the coming for these technologies, and those communities of people, who will now find themselves vulnerable.”

Meanwhile, days before the Alabama decision was handed down, and a few hundred miles away, a state House committee in Oklahoma approved a bill that would create a database within the Oklahoma State Department of Health to track women who have had abortions, as well as how many they have had, and require physicians to justify why they performed an abortion under oath. It would also prevent Oklahomans from obtaining some over-the-counter emergency contraceptive prescriptions without a physician’s approval, and would place new restrictions on intrauterine devices, or IUDs, a popular form of birth control.

The Oklahoma bill is emblematic of the larger movement across several states. “We have seen throughout the states an effort to ban or limit access to contraception generally,” said Forouzan, pointing to legislation in several states to limit young people’s ability to obtain contraception. This legislation could provide another blueprint for states seeking to restrict access to certain contraception.

“As we monitor the state legislative sessions, as they progress, we see different types of bills start to trend, in a sense. So they’ll have success being implemented in one state, and then in the next session, we’ll see a few states that have introduced them,” Forouzan said. “Often, that can serve to normalize something that we hadn’t really seen before, especially when it comes to abortion restrictions.”

The same goes for litigation: The Alabama decision has already inspired a religious organization to challenge a proposed ballot initiative in Florida to protect abortion rights. “Every human life begins as an embryo, and now the Alabama Supreme Court has upheld the decision of its citizenry that every unborn life should be protected, no matter their stage or location,” said Mat Staver, the chair and founder of Liberty Counsel, which is bringing forward the challenge in Florida.

This development is only to be expected. “What one sees in the wake of the kind of pro-natalism that’s taken hold in the United States is that when one state sneezes, the rest catch a cold,” said Goodwin.

This article first appeared in Inside Washington, a weekly TNR newsletter authored by staff writer Grace Segers. Sign up here.

Vibe Check: A government funding jump scare

Each week, I provide an update on the vibes surrounding a particular policy or political development. This week: Congress is a horror movie, and the need to fund the government is the monster lurking behind the door.

This Monday, we celebrated Presidents’ Day, so named because it happens to fall roughly around the birthdays of noted Aquarians George Washington and Abraham Lincoln. (February 19 actually was Washington’s birthday, which means we get an extra point for accuracy, I guess.)

Congress, as it is wont to do, opted to extend the three-day weekend into a full week away from Washington. (Yes, comms directors, I know lawmakers do work in their districts/states, simmer down.) Which means that when they return, on the evening of February 28, they will have three legislative days to partake in what’s become one of their more regular pastimes: preventing a partial government shutdown. Long ago, in mid-January, Congress approved a “laddered” continuing resolution, extending funding for five federal agencies through March 1, and then for the remaining nine through March 8. This itself was an extension of a previous continuing resolution, but here’s the best part: Unless Congress can pass all 12 appropriations bills in a few days, there will likely be yet another short-term continuing resolution to avert a shutdown.

Representative Mike Quigley, the Democratic ranking member of the Appropriations subcommittee pertaining to transportation and housing, said that he did not believe Congress could approve appropriations bills before the early March deadlines. “You’re never losing money betting against Congress,” Quigley said. When asked if Congress would need to pass another continuing resolution, Quigley replied: “That’s always a safe bet.”

Appropriations Committee staff will still be working to finalize legislation while lawmakers are away from Washington, said Representative Rosa DeLauro, the ranking member of the Appropriations Committee. But some sticking points remain, she added, such as the possible inclusion of so-called “policy riders” that would provide wins for conservative lawmakers otherwise upset by the amount of spending. “Riders are unacceptable,” DeLauro said. “If they decide they’re going to create chaos again around the riders, then the process becomes unglued.”

Continuing resolutions are exceedingly unpopular with many Republicans in the rank and file, so Speaker Mike Johnson has had to lean on the Democratic minority to help push the stopgap measures over the finish line. He will likely have to do so again, using a procedural maneuver that allows legislation to pass with support from two-thirds of the House. Given the narrow three-seat Republican majority, conservative members could otherwise throw hurdles in front of any spending legislation.

If another such short-term resolution is needed, it will likely enrage far-right Republicans even more, potentially threatening Johnson’s speakership. Lest we forget—and truly, how could you?—Speaker Kevin McCarthy was ousted in part because of his compromise to keep the government open last fall. If the government funding bills do pass in “minibus” or “omnibus” form, in which several measures are roped together for one vote, many hard-right members would see that as a further betrayal.

Then there’s the threat of not actually being able to pass any appropriations bill, and instead needing to approve a full-year continuing resolution—an idea opposed by Democrats and Republican hawks, as it would functionally amount to across-the-board spending cuts (including for defense programs). Axios reported this week that given these disagreements, many House Republicans are expecting a government shutdown, even if it only lasts a few days.

Despite the time crunch, some lawmakers remain optimistic. “A lot of these bills are pretty close to done now,” said Representative Tom Cole, the chair of the Transportation and Housing Subcommittee in the Appropriations Committee. However, he acknowledged there were “some disagreements we knew we would kick upstairs” for committee leadership to consider—i.e., the aforementioned policy riders—and he said that some agency funding bills were still being hammered out. At a recent Republican leadership retreat in Miami, Punchbowl News reported, Cole said that he expected congressional leaders to back the spending bills, rather than relying solely on appropriators to push them across the finish line.

Moreover, despite not having passed government funding for fiscal year 2024, congressional appropriations committees will soon begin working on fiscal year 2025. President Joe Biden will also be releasing his proposed budget (*cough* policy wish list) soon.

“This shows you how messed up we are,” said Quigley about the potential overlap in budgets. “This is no way to run a railroad.”

What I’m reading

Control of the House could come down to this New York Republican, by Grace Segers in Politico. (No, I don’t have a doppelgänger who is also a political reporter—I wrote this piece for Politico’s magazine, and you should check it out!)

Everyone knows Sutton Foster can sing. Now we know she can juggle, by Michael Paulson in The New York Times

Matt Gaetz’s chaos agenda, by Dexter Filkins in The New Yorker

Naps, jokes and younger advisers: How octogenarians think Biden can win, by Meryl Kornfield in The Washington Post

Private equity has its eyes on the child-care industry, by Adam Harris in The Atlantic

The hot new luxury good for the rich: air, by Shayla Love in The New Republic

Pet of the Week