Governors roundly condemn Alabama ruling that effectively halts IVF

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The Alabama Supreme Court effectively halted in vitro fertilization at several state hospitals and caused a massive nationwide backlash when it ruled last week in a wrongful death case that frozen embryos used in IVF are considered people.

Dr. Paula Amato, the president of the American Society for Reproductive Medicine, said in a press release it was a mistake to conflate frozen fertilized eggs with embryos developing within a mother.

“By insisting that these very different biological entities are legally equivalent, the best state-of-the-art fertility care will be made unavailable to the people of Alabama. No health care provider will be willing to provide treatments if those treatments may lead to civil or criminal charges,” Amato said.

About 2% of babies born in the U.S. were the result of IVF, meaning about 8 million people were born because of the technology.

Even in deeply conservative Alabama, the reaction against the high court’s decision came swiftly. Gov. Kay Ivey, a Republican, said Friday that the “culture of life” she wants to foster in the state “includes some couples hoping and praying to be parents who utilize IVF.”

Ivey backed the efforts of the chair of the state Senate’s health care committee to limit the scope of the supreme court’s ruling. Sen. Tim Melson, a Republican anesthesiologist and a clinical researcher, is working on legislation to narrow the decision.

“[The justices] just read the bill, and the way it’s written, it’s like if you’re going to say from conception, it’s life, which I do believe it is. But it’s not a viable life until it’s implanted in the uterus,” Melson told reporters from WBHM public radio. Democratic lawmakers have already introduced their own proposal, but they are vastly outnumbered in the legislature.

The efforts at the Alabama State House might reassure the three fertility clinics in the state that stopped performing IVF treatments in light of the decision and allow them to reopen. But the political fallout has already spread far and wide.

President Joe Biden denounced the ruling. He called it a “direct result” of the U.S. Supreme Court’s 2022 decision to overturn Roe v. Wade, which said the constitution protected the right to an abortion.

“Today, in 2024 in America, women are being turned away from emergency rooms and forced to travel hundreds of miles for health care, while doctors fear prosecution for providing an abortion. And now, a court in Alabama put access to some fertility treatments at risk for families who are desperately trying to get pregnant,” said the Democratic president, who is up for reelection. “The disregard for women’s ability to make these decisions for themselves and their families is outrageous and unacceptable.”

The Republican governors of two of Alabama’s neighboring states also voiced support for IVF while in Washington for a meeting of the National Governors Association. Georgia Gov. Brian Kemp said he supported the procedure in general. “You have a lot of people out there in this country that they wouldn’t have children if it weren’t for that,” Kemp told Politico. Tennessee Gov. Bill Lee said he was “generally” supportive of the practice but didn’t know the details of the Alabama case.

New Hampshire Gov. Chris Sununu, another Republican, called the Alabama ruling “scary.” He especially took issue with a concurrence from the chief justice that cited Bible passages in support of the decision.

“There’s two issues: No. 1, I mean, you have the separation of church and state, and using theology and opinions and all that. Let’s not start bashing Christians. I believe wholeheartedly in Christianity,” Sununu said in a CNN interview Thursday. “It sounds to me like obviously that judge overstepped his bounds in terms of using those arguments to make his case.”

“If you based everything on religion, your own personal religion behind the bench, it would be chaos everywhere,” he added.

Democrats pounced on the ruling as well, using it as an example of Republican overreach on restricting reproductive rights.

“Far-right extremists aren't content to just rip away women’s freedom to choose. Now they're attacking IVF, too,” wrote Pennsylvania Gov. Josh Shapiro on social media. “We knew this was coming. Here in Pennsylvania, we’ll defend your freedom to choose—and women's freedom to make their own medical decisions.”

Illinois Gov. JB Pritzker blamed “MAGA extremists” for the ruling in an email to The Washington Post. “They are coming for contraception. They are coming for IVF. They are coming for women. And they will lose when voters have their say,” he wrote.

The fractured ruling from the all-Republican Alabama high court came in the case of three couples whose frozen embryos were destroyed in 2020 at a fertility clinic. The couples sued the Center for Reproductive Medicine, blaming the clinic for not securing their embryos from a patient at an adjoining hospital who intruded into the clinic, took the frozen embryos and then dropped them on the floor, destroying them.

Seven of the nine members of the court allowed the lawsuit to proceed, although their reasoning varied greatly.

Justice Jay Mitchell and two other judges formed the plurality opinion. The key question, they said, was whether Alabama’s Wrongful Death of a Minor Act, which was written in 1872, makes any exceptions for parents’ ability to recover punitive damages for their child’s death for “extrauterine children— that is, unborn children who are located outside of a biological uterus at the time they are killed.”

“Under existing black-letter law, the answer to that question is no: the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location,” they wrote.

Chief Justice Tom Parker wrote separately to invoke a recent amendment to the Alabama constitution that supports the “sanctity of unborn life.”

“The people of Alabama have declared the public policy of this state to be that unborn human life is sacred. We believe that each human being, from the moment of conception, is made in the image of God, created by Him to reflect His likeness,” Parker wrote.

But other judges pushed back on Mitchell’s claims. One judge noted, for example, that the court’s interpretation of the wrongful death statute had changed over the decades, even though the language of the law had not. IVF wasn’t even a possibility in the first 100 years the law was in existence, wrote Justice Brady Mendheim, Jr.

“The main opinion fails to acknowledge that, at the time the Wrongful Death of a Minor Act was enacted—and long thereafter—the term ‘unborn child’ was only understood to refer to a child within its mother’s womb,” he wrote.

Justice Greg Cook, who dissented, pointed out how out of step the majority’s decision was with other legal authorities. “No court—anywhere in the country—has reached the conclusion the main opinion reaches,” he wrote. He predicted that the opinion would lead to the end of creation of frozen embryos in Alabama, even though the plaintiffs in the case supported IVF.

During oral arguments, he said, their lawyer acknowledged as much. “We’re here advocating on behalf of plaintiffs who are supporters of in vitro fertilization,” the lawyer said. “It worked for them. They have two beautiful children in each family because of in vitro fertilization. The notion that they would do anything to hinder or impair the right or access to IVF therapy is flat wrong. That’s not why we’re here.”

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News to Use

Trends, Common Challenges, Cool Ideas, FYIs and Notable Events

• DRUG PRICES: Colorado moves to cap price of arthritis drug in first-in-the-nation action by state affordability board. A Colorado board voted to move forward with setting a price ceiling on the arthritis drug Enbrel on Friday, a first-in-the-nation step that raises questions about whether a single state can reduce drug costs without unintended consequences. Colorado would be the first to set a price ceiling on any drug, meaning the state can’t look to others for clues to how drugmakers will respond. Opponents of the process say patients could lose access to drugs under a price ceiling, while supporters say drugmakers can’t easily cut states out of their distribution chains and still make money. The vote by the Prescription Drug Affordability Board kicks off a six-month process to determine what price would be appropriate for Enbrel. The board also has the option to ultimately vote against a price ceiling at the end of the process. To address the sharp climb in drug prices over the last decade, 11 states have moved to create prescription drug affordability review boards in recent years.


• REDISTRICTING: Wisconsin leadership comes to terms on new legislative maps. Wisconsin Democratic Gov. Tony Evers signed new legislative district maps into law on Monday that he proposed and that the Republicans who control the legislature passed to avoid having the liberal-controlled state Supreme Court draw the lines. Democrats hailed the signing as a major political victory in the swing state where the legislature has been firmly under Republican control for more than a decade, even as Democrats have won 14 of the past 17 statewide elections. “When I promised I wanted fair maps—not maps that are better for one party or another, including my own—I damn well meant it,” Evers said prior to signing the maps into law. Democrats are almost certain to gain seats in the state Assembly and state Senate under the new maps, which will be in place for the November election. Republicans have been operating since 2011 under maps they drew that were recognized as among the most gerrymandered in the country.


• IMMIGRATION: Arizona Republicans move controversial immigration bills despite veto threat. Republican lawmakers at the Arizona Legislature advanced multiple immigration bills Wednesday that drew comparisons to the controversial SB 1070 immigration law that passed over a decade ago.The so-called Arizona Border Invasion Act would make it a state crime to cross Arizona’s southern border illegally. It would essentially duplicate federal law by prohibiting a person from entering Arizona from Mexico outside a port of entry, or reentering the state if they had already been deported. Democrats opposed the bill, saying it is the federal government, not the state, that is responsible for immigration law and border security. They compared the bills to SB 1070, the immigration law passed by Arizona lawmakers in 2010 that was partially overturned by the U.S. Supreme Court after a majority of justices found sections empowering state and local police to enforce immigration laws conflicted with federal law. Democrats said SB 1070 disproportionately affected specific groups and that they believed the new legislation would have a similar impact.


• PUBLIC HEALTH: Florida defies CDC in measles outbreak. With a brief memo, Florida Surgeon General Joseph Ladapo has subverted a public health standard that’s long kept measles outbreaks under control. On Feb. 20, as measles spread through Manatee Bay Elementary in South Florida, Ladapo sent parents a letter granting them permission to send unvaccinated children to school amid the outbreak. Ladapo’s move contradicts advice from the Centers for Disease Control and Prevention. “This is not a parental rights issue,” said Scott Rivkees, Florida’s former surgeon general who is now a professor at Brown University. “It’s about protecting fellow classmates, teachers, and members of the community against measles, which is a very serious and very transmissible illness.” About 1 in 5 people with measles end up hospitalized, 1 in 10 develop ear infections that can lead to permanent hearing loss, and about 1 in 1,000 die from respiratory and neurological complications.


• CLIMATE CHANGE: Chicago sues five big oil companies over “climate deception.” Chicago is suing five of the world’s largest oil and gas companies, accusing them of lying about their products and the dangers of climate change that contributes to flooding, extreme heat and other destructive forces that continue to hurt the city and its residents. Mayor Brandon Johnson’s administration is also suing the trade group American Petroleum Institute, which it accuses of conspiring with the companies to deceive consumers through disinformation campaigns even as the industry acknowledged internally that climate change was real. Chicago is following the lead of New York, California and other cities and states that seek to recoup potentially billions of dollars in damages blamed on the burning of fossil fuels, such as oil and natural gas, that create carbon dioxide and have led to climate change. The city has not asked for a specific amount of money.


• PUBLIC HEALTH: Is it OK to go out with COVID? Oregon says yes, now the CDC may follow. Last May, Oregon veered from the Centers for Disease Control and Prevention’s recommendation that anyone who tests positive for COVID stay home for at least five days and wear a mask for an additional five days. Oregon is telling people it is OK to go out with COVID as long as they’ve been fever-free for 24 hours and any symptoms they might have are improving. The state’s policy largely went unnoticed by many until last month, when California followed suit and a much more public national debate erupted among epidemiologists. Last week, The Washington Post reported that the CDC may follow Oregon’s and California’s lead by revising its guidelines in coming months—possibly airing the idea for public feedback in April.


• TAXES: Virginia pitches unprecedented arena financing source. A proposal to move the Washington Capitals and Wizards sports teams to suburban Virginia would rely on a tax financing model that goes beyond a typical sports venue deal, reports Bloomberg. The plan, which is being debated by Virginia lawmakers, would receive funding from the corporate tax that businesses pay to operate at the arena, as well as the personal income tax paid by workers employed at those businesses. Experts say it would be the first arena in the US to be financed using revenues from these tax sources. Legislation from Virginia lawmakers would fund a 70-acre sports and entertainment district that includes an arena, practice facility and performing arts venue, plus a broadcast studio and headquarters for Monumental Sports and Entertainment, which owns several pro sports teams in the region.The measure’s backers say that the campus would generate $12 billion over the next few decades, plus tens of thousands of jobs.


• HOUSING: In the housing crisis, states are turning to rent caps. From coast to coast, housing has emerged as perhaps the biggest statehouse issue this year. The number of households considered by the federal government to be rent-burdened—meaning that rent consumes more than 30% of their income—climbed  to a record high of 22.4 million in 2022, according to a new report from the Joint Center for Housing Studies at Harvard University. To address the situation, a handful of states have turned to rent caps, reports The New York Times. Rent regulations have historically been adopted by municipalities rather than states. But now, Washington is considering a measure that would limit annual rent increases to 7%. If enacted, it would become the third state in the country to adopt statewide rent regulations, after Oregon and California—and all within the last five years.


• OPIOIDS: Washington tribes look to Iceland model for getting teens off drugs. It’s called the Icelandic Prevention Model, and it’s helped slash alcohol use among Icelandic 15- and 16-year-olds from 77% to 35% in 20 years. Dubbed the “Washington Tribal Prevention System,” Washington and five tribes will partner with Planet Youth, a nonprofit bringing the approach to other places. The model involves rethinking how to discourage drug use by placing responsibility on the community, rather than the individual. Instead of asking kids to “just say no,” the Icelandic Prevention Model calls on the adults in a child’s life to create an environment without drugs and alcohol. The pilot will run 10 years.


• ECONOMIC DEVELOPMENT: Texas launches new property tax incentive program. Texas on Thursday launched a new economic incentives program intended to bring new companies and jobs to the state, replacing a prior job creation system that lawmakers phased out after complaints that it contributed to inequity in public schools. Gov. Greg Abbott announced the opening of applications for the Texas Jobs Energy, Technology, and Innovation, or JETI, program. Passed with bipartisan support by lawmakers last year, it will provide property tax cuts to eligible companies that move into Texas communities in exchange for job creation. It replaces Chapter 313, the widely criticized abatement program that expired at the end of 2022. The new program includes more oversight of participating companies, introduces additional job and salary requirements and halves Chapter 313’s property tax cuts.


• SOCIAL MEDIA: TikTok time limit? Pop-up warnings proposed for Colorado youth. Legislators began debating a bipartisan bill Thursday—authored, in part, by a 17 year old—that would require the Colorado Department of Education to create a resource bank for educators and parents about social media’s effects on youth mental health. It would also require pop-up warnings when young users who have been on a social media app for more than an hour on a given day open it after 10 p.m. The pop-up would reappear again after 30 minutes of use, then after another 15 minutes, and finally every five minutes the user remains on it. Another bill, introduced last week, would establish age-verification requirements for social media companies and require them to ban users who promote or sell illicit substances or firearms in violation of state and federal laws. It also bans those who engage in sex trafficking of juveniles or possession or distribution of sexually explicit material. The bill would require app makers to provide tools to parents and guardians of users under 18 so they can regulate how the youth use the social media platform. The companies also would have to provide those tools to users they know, or should reasonably know, are underage.


• POLITICS: How Democrats hope to expand their power at the state level. Locked out of power on the Supreme Court and still playing catch-up against Republicans in the federal judiciary, Democrats are hoping to gain a political advantage on a less visible but still important playing field: the state courts. Governors have the power to appoint judges in nearly every state. These responsibilities are set to take center stage in political campaigns this year, as the Democratic Governors Association begins a multimillion-dollar effort, called the Power to Appoint Fund, aimed at key governor’s races, reports The New York Times. The fund, with a $5 million goal, will focus especially hard on two open seats in 2024 battlegrounds: New Hampshire, where the governor has the power to appoint state court justices, and North Carolina, which elects its justices; the next governor will appoint at least one State Supreme Court justice because of the state’s age limit rules.

Picture of the Week

The “Laser Loon,” now decorates the latest limited-edition library cards issued by the St. Paul Public Library system, reports the Pioneer Press. The new Minnesota state flag (which, like the old one, is loon-less) continues to be the stuff of partisan cultural divide, with some state lawmakers vowing to make it a significant topic of debate this legislative session. But while the laser loon did not ultimately sway a state task force entrusted with choosing the winning flag design, it now adorns the capital city library system’s library cards, which are free for residents to pick up at any city library location. Inspiration for the design came from a mock-up that the library system posted to Instagram on Dec. 23, with the laser loon imposed above the large red-letter command “READ.”

What They’re Saying

“‘I would build a wall of steel, a wall as high as Heaven, against the admission of a single one of those Southern Europeans who never thought the thoughts or spoke the language of a democracy in their lives.’”

—Illinois Gov. J.B. Pritzker, a Democrat, during his State of the State address on Wednesday, quoting Georgia Gov. Clifford Walker from 100 years ago at a Ku Klux Klan rally. “But the reality is,” Pritzker continued, “it could have been a social media post by President Trump last week. Time might march forward, but our society’s worst impulses seem never to go away.” The governor went on to also slam Texas Gov. Greg Abbott for “willfully” sending asylum-seekers to “locations and at times that would engender the maximum chaos for the city of Chicago and for the asylum-seekers themselves. Children, pregnant women, and the elderly have been sent here in the dead of night, left far from our designated welcome centers, in freezing temperatures, wearing flip flops and T-shirts. Think about that the next time a politician from Texas wants to lecture you about being a good Christian.” The governor is asking the legislature for $182 million to help with the migrant crisis. He criticized the Biden administration’s response, calling for action.