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The implications of Alabama’s IVF high-court ruling for Pennsylvania families and politicians

A container with frozen embryos and sperm stored in liquid nitrogen
Lynne Sladky
A container with frozen embryos and sperm stored in liquid nitrogen is removed at a fertility clinic in Fort Myers, Fla., Tuesday, Oct. 2, 2018. The Alabama Supreme Court ruled, Friday, Feb. 16, 2024, that frozen embryos can be considered children under state law, a ruling critics said could have sweeping implications for fertility treatments. The decision was issued in a pair of wrongful death cases brought by three couples who had frozen embryos destroyed in an accident at a fertility clinic.

This is WESA Politics, a weekly newsletter by Chris Potter providing analysis about Pittsburgh and state politics. If you want it earlier — we'll deliver it to your inbox on Thursday afternoon — sign up here.

Julia Santucci hasn’t had an easy journey to parenthood, but she’s one of the lucky ones. Lucky enough to have had access to in vitro fertilization. Lucky enough that thanks to the procedure, she’s expecting a second child in May. Lucky that she and her husband are raising that family in the North Hills of Pittsburgh, 600 miles from Alabama.

“I feel really deep empathy for women in that state right now” who are going through IVF, she said. “They’re in the middle of a really grueling financial, emotional and physical process. And to have the state pause it would be devastating.”

That pause results from a recent Alabama Supreme Court decision, which held that frozen embryos used in IVF are children.

"Unborn children are 'children' … without exception based on developmental stage, physical location, or any other ancillary characteristics,” the court held. Alabama health care providers who offered the procedure quickly halted it, citing concerns about what the ruling meant for embryos that weren’t implanted.

The ruling would have had no impact on Santucci even if she lived in Alabama: She had three viable embryos and was able to have all three implanted. But the first one resulted in a complicated pregnancy and a premature birth that ended in death.

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Santucci and her husband tried again and today have a healthy son. To make that call, “You have to weigh the risks to yourself against the outcome you hope to have,” she said. “I could easily see why someone else would make a different decision. And one of the things that scares me is that you’re taking those decisions out of the hands of families and putting them in the hands of the government.”

Part of the fear is that what happens in Alabama may not stay there. Reproductive-rights advocates have braced for such developments since 2022, when the U.S. Supreme Court, remade by former President Donald Trump’s three court appointees, overturned Roe vs. Wade’s guarantee of abortion rights.

Still, Trump and other Republicans say they’re perturbed by the ruling. Trump has urged state officials to address the situation: “We want to make it easier for mothers and fathers to have babies, not harder.”

Alabama officials say they’re working on a fix, while U.S. Rep. Nancy Mace of South Carolina has said she’ll offer a resolution expressing support for the procedure. It won’t have any actual impact, though Mace has said it will build support for a future bill that would. (On Thursday, Alabama lawmakers advanced legislation to extend lawsuit protections to fertility clinics.)

Santucci says she finds little comfort in such statements: “It’s distancing themselves from the policy decisions and judicial appointments that have gotten them here. And I haven’t heard anyone say, ‘We would support a nationwide law to protect IVF.’"

“I’m really scared about what a second Trump term would mean,” she said.

Trump was never likely to get Santucci’s vote: For one thing, she serves on an advisory board that advises President Joe Biden on intelligence matters. But she’s clearly not the only one with concerns about what happens next.

Last week, the National Republican Senatorial Committee, the campaign operation for Senate Republicans, sent out a memo urging candidates to get ahead of those concerns. Citing survey data that 85% of Americans support IVF, the memo called it “imperative that our candidates align with the public’s overwhelming support” for such treatments.

That same day, Pennsylvania U.S. Senate candidate Dave McCormick tweeted out a statement calling IVF “a ray of hope for millions of Americans seeking the blessing of children. I oppose any effort to restrict it.”

That may not be quite the same as supporting efforts to protect it, however. I asked McCormick’s campaign whether he would support Sen. Tammy Duckworth’s Access to Family Building Act, which provides federal protection to fertility procedures. But a campaign spokesperson said only that he “will consider any legislation that protects this pro-family procedure.”

Duckworth sought to jump-start consideration of her bill this week, but the effort failed due to GOP opposition. The measure remains in a Senate committee on which Democrat Bob Casey, whom McCormick hopes to topple this fall, holds a seat.

Casey spokesperson Natalie Adams said he supports the measure “as a concrete solution, and a way to head off Republican efforts” to limit access to IVF. The need for such legislation, she said, “isn’t hypothetical in a post-Roe America.”

Pennsylvania’s congressional delegation, in fact, already includes cosponsors of the Life at Conception Act, which doesn’t explicitly limit IVF but contains the same premise as Alabama’s court ruling — that the definition of a human being includes “all stages of life, including the moment of fertilization.” Backers include Western Pennsylvania’s Guy Reschenthaler.

And as gun-reform advocates know, popularity is no guarantee of political success. While polling says IVF is broadly popular, the issue may strike closer to some homes than others.

A 2018 Pew Research poll found that one-third of Americans either knew someone who’d used fertility treatments including IVF or had done so themselves. But IVF isn’t cheap, and it often isn’t covered by insurance. So not surprisingly, poll respondents with higher incomes and education levels were two to three times more likely to have first- or second-hand knowledge of it.

Those are demographics Trump’s GOP already struggles with. And while they may find a way to protect the procedure, part of the political challenge is that they are rushing to do so now.

When conservative justices overturned Roe in June of 2022, both parties knew it would transform the political landscape and the lives of women and families. But when Congressional Republicans came to Western Pennsylvania three months later to unveil their agenda for controlling the House of Representatives, they could barely bring themselves to discuss the ruling’s implications. Such matters were for states to decide, they said.

We’ll see if they’ve changed their minds. But even as conservative elected officials and judicial appointees reshape family planning decisions, many seem to have done little planning for the real-world implications.

Nearly three decades after leaving home for college, Chris Potter now lives four miles from the house he grew up in -- a testament either to the charm of the South Hills or to a simple lack of ambition. In the intervening years, Potter held a variety of jobs, including asbestos abatement engineer and ice-cream truck driver. He has also worked for a number of local media outlets, only some of which then went out of business. After serving as the editor of Pittsburgh City Paper for a decade, he covered politics and government at the Pittsburgh Post-Gazette. He has won some awards during the course of his quarter-century journalistic career, but then even a blind squirrel sometimes digs up an acorn.