On February 16, in a decision that has raised alarm bells nationwide, the Alabama Supreme Court ruled that frozen embryos created during fertility treatments such as in-vitro fertilization (IVF) are considered children under state law, and that those who destroy them can be held liable. This court case, LePage v. Mobile Infirmary Clinic, is the latest in an onslaught of legal battles that threaten to curtail reproductive freedoms.

The case in Alabama was brought forth by three couples who had each sought IVF services to create embryos for later implantation and whose embryos were unintentionally destroyed in the medical facility they were being stored in. While the origins of the case represent an understandable grievance on behalf of the plaintiffs and were not explicitly intended to roll back reproductive rights as seen in other notable court cases, the results were the same: a court decision sowing fear, confusion, and uncertainty among patients and providers alike.

This decision will not only create harmful effects for those in the state of Alabama, but the broader implications are likely to reach beyond the state’s borders and into other states already hostile to reproductive rights. This court decision is just the latest in a troubling trend seen nationwide that many reproductive justice activists and advocates have warned and worried about for a very long time: the far right never planned to stop at overruling the federal right to abortion.

What Is IVF?

IVF, which works by combining medicines and surgical procedures to help sperm fertilize an egg and then help that fertilized egg implant in a uterus, is one of the most popular and well-known types of assisted reproductive technology (ART). The entire process of IVF—from taking fertility medications, to egg retrieval, to insemination and fertilization, to embryo transfer—can take weeks to months to complete, and is often emotionally taxing, time consuming, and expensive. What’s more, roughly 50 percent of IVF embryo transfers fail, meaning that if a couple or individual still desires a child after a failed IVF attempt, they must start the process all over again.

Most medical professionals will freeze and store multiple unused embryos that are created during an initial IVF cycle for future IVF cycles so that patients will not have to undergo egg retrieval or take more medications again, saving them time and money. Other reasons why someone might freeze their embryos is to help preserve their fertility for the future. When a patient is undergoing a medical intervention such as hormone therapy, cancer treatment, or gender affirmation surgery, their fertility can be impacted, and their physicians may recommend freezing embryos.

Despite the hardships involved, IVF has made having children possible for millions and continues to increase in popularity. In the United States, roughly 20 percent of people assigned female at birth and 10 to 15 percent of people assigned male at birth experience infertility. Beyond those experiencing infertility, other populations that might seek ART methods such as IVF include LGBTQ+ couples and people with disabilities. Since the first successful birth through IVF in 1981, the use of IVF and other ART methods has steadily increased. Currently, about 2 percent of births in the United States are a result of IVF. Based on data from the Centers for Disease Control and Prevention (CDC), in 2021, approximately 238,126 patients had 413,776 ART cycles performed. Of those cycles, nearly 200,000 resulted in eggs or embryos being frozen for future use.

Bolstering access to ART methods such as IVF gives those affected by infertility or pregnancy loss, people with disabilities, and LGBTQ+ couples options when it comes to building a family on their own terms, oftentimes fulfilling their human right to have children. Since it is not always covered by insurance, IVF is already inaccessible for many of those who may rely upon ART to build their family.

The decision made in LePage v. Mobile Infirmary Clinic threatens to dramatically alter the implementation and efficacy of this medical technology—or even remove access to it entirely for people hoping to be parents in the state—and thus roll back reproductive justice at a time when advocates are working to expand coverage and move forward into a world with increased access and options for all.

What Exactly Is At Stake?

The Alabama Supreme Court’s decision is just one more salvo in an ongoing war on reproductive justice in the United States. While the U.S. Supreme Court’s Dobbs decision in 2022 has had a devastating impact, attacks on abortion are not the only ones underway—actors on the right have plans and aspirations to roll back reproductive health care beyond abortion as well. This is why the importance of the reproductive justice framework cannot be understated. While the reproductive rights movement has traditionally focused on the legal right to abortion, reproductive justice was born out of the need to recognize the human right to a much broader range of issues concerning if, when, and how people choose to have children, and the environments in which they parent. The reproductive justice movement, named as such and organized into its current form by Black women in 1994, fights not only for the right to not have children—through methods such as access to abortion and contraception—but also for the right to have children and the right to raise those children in a safe and healthy environment.

The recent Alabama Supreme Court decision comes at a time when reproductive justice is far from being realized in the state. Alabama is enforcing a total abortion ban and has some of the most abysmal maternal health outcomes in the entire country. The state also has opted not to expand Medicaid, has no paid family leave, does not offer Medicaid reimbursement for doula care, and lacks a maternal mortality review committee (MMRC) to understand and address causes of maternal death. And now, IVF may no longer be an option for those seeking to build a family.

Already, the decision in LePage v. Mobile Infirmary Clinic is directly impacting Alabama residents’ ability to become parents, as the University of Alabama at Birmingham hospital, the state’s largest hospital, has halted its IVF services in response to the court case. Two additional clinics in Alabama have also paused their IVF treatments. The human impact of decisions made in courthouses and statehouses is real. How many couples or individuals hoping to start a family must now be forced to wait in limbo while their providers navigate potential legal ramifications for the care they took an oath to provide?

The language that Chief Justice Tom Parker used to justify the decision is an ominous threat to reproductive rights and freedoms. Declaring that “life cannot be wrongfully destroyed without incurring the wrath of a holy God,” Parker added that courts, not legislators or medical professionals, must dictate how IVF is performed going forward. Beyond the troubling insertion of religion into law by invoking the Bible, the decision is yet another example of courts inserting themselves in reproductive health decisions that should only involve the patient and their care provider.

Alabama is far from being the only state where reproductive justice is under attack. The Alabama decision comes on the heels of a new bill introduced in Oklahoma that would ban the “morning-after” pill (oral emergency contraception) and could also prevent health care providers from prescribing IUDs for emergency contraception. Although the Alabama decision does not rely on the dangerous concept of “fetal personhood,” the language used in the decision, such as “embryonic children,” signals that it could be a step in that direction. The fetal personhood argument at the heart of bills like the one in Oklahoma are used not only to make all abortions (regardless of when in gestation they occur) illegal, but also to ban any form of emergency contraception such as Plan B or copper IUDs. This is in spite of the fact that emergency contraception is not an abortifacient: it does not work, nor is it intended to work, post-fertilization. These tactics are blatantly not based in science, but instead motivated by extremist views.

The Attack on Reproductive Justice Is a Rogue War

In a post-Dobbs landscape, the attack on reproductive justice seems relentless: while abortion access continues to be chipped away at, and advocates gear up for the U.S. Supreme Court’s upcoming cases on mifepristone and the right to emergency abortion care, access to contraception and fertility treatments are also under assault. But these efforts are in direct opposition to the strong public support for access to reproductive health services. Unsurprisingly, like abortion, IVF and contraception are overwhelmingly popular. Over-the-counter birth control pills enjoy support from a bipartisan majority of voters, 84 percent of Republican voters are in support of safe and accessible birth control, and 86 percent of respondents to a recent poll supported access to IVF, including among those who identified as “pro-life” and Evangelical. Since last Friday’s Alabama Supreme Court decision, even conservative governors such as Georgia’s Governor Brian Kemp and Tennessee’s Governor Bill Lee have come out in support of IVF.

It has never been more clear that extremist decisions on reproductive health are being made by a rogue minority at courthouses and statehouses. The result is a legal and policy landscape that is dangerously out of step with the thoughts and opinions of the average American when it comes to some of the most intimate and personal issues regarding if, when, and how one decides to build a family.