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Alabama exposes GOP buyer’s remorse on ‘personhood,’ following IVF ruling

Banning abortion has been far better in theory than in practice for the Republican Party. After the Supreme Court in 2022 overturned Roe v. Wade and opened the door to abortion restrictions, the party has struggled mightily with the new paradigm.

And few examples drive that home like the party’s embrace of in vitro fertilization (IVF) late last week.

Suddenly, Republicans are making a point to emphasize that they support something their own very recent proposals could clearly have imperiled.

To recap: The Alabama Supreme Court ruled that frozen embryos are people, and thus someone could be held liable in a lawsuit for discarding one. This led several of the state’s largest IVF facilities to pause the creation of new embryos out of fear of legal action.

A flood of Republicans, including former president Donald Trump on Friday, asserted that they support IVF. They were spurred by an extraordinary memo from Senate Republicans’ campaign arm urging everyone to embrace the fertility treatment.

Democrats countered by noting that many who expressed support for IVF have also supported the Life at Conception Act. The legislation, which Republicans have introduced in Congress for years, is sponsored by 125 House Republicans this Congress and was sponsored by 167 House Republicans last Congress.

The text of the act is relatively brief. But it builds on so-called “personhood” efforts and would effectively codify embryos as people — affording them the same protections under the 14th Amendment.

“The terms ‘human person’ and ‘human being’ include each and every member of the species homo sapiens at all stages of life, including the moment of fertilization, cloning, or other moment at which an individual member of the human species comes into being,” the bill says. It has never been acted upon by Congress.

The reason this bill could ensnare IVF — and the Alabama Supreme Court ruling did — is that the process often creates a number of embryos that aren’t immediately implanted. Those frozen embryos can be used at a later date, but they can also go unused.

The Washington Post’s Ariana Eunjung Cha and Emily Wax-Thibodeaux reported in 2022 about how the fall of Roe imperiled IVF:

One often misunderstood aspect is the number of fertilized eggs, or embryos, that will never grow into babies and are discarded. A couple might find, for instance, that among 10 embryos, most carry a mix of normal and abnormal cells, or have abnormal cells with an infinitesimally low probability of implanting in the uterus. Even fertilized eggs that test as “normal” often do not result in pregnancies.

As The Post’s Mariana Alfaro reports, Republicans who co-sponsored the Life at Conception Act but now insist they support IVF, like House Speaker Mike Johnson (R-La.) and Rep. Byron Donalds (R-Fla.), haven’t addressed how they square those two positions.

As for how at odds they are?

Some on the right have suggested that this is much ado about nothing — that personhood efforts and the Life at Conception Act are obviously intended to restrict abortion, and that Republicans obviously support protecting IVF. As far back as 2013, a Pew Research Center poll found that just 12 percent of Americans — including 12 percent of Republican-leaning Americans — said that IVF is “morally wrong.”

But that poll question didn’t get into the complex issue of discarding embryos. Indeed, distilling the issue down to pro-IVF versus anti-IVF is to ignore those complex issues. And if you believe that an embryo should have the rights of a person, a logical question follows as to whether destroying or discarding one amounts to murder or wrongful death.

At the very least, it opens the door to significantly curtailing the use of IVF to prevent the discarding of any embryos or their accidental destruction — the latter being the situation the Alabama Supreme Court was deciding.

All of which is why at least some Republicans pursuing some such efforts have explicitly sought to exempt IVF:

Louisiana lawmakers in 2022 exempted fertility treatments from an effort to criminalize abortion.Even in passing one of the country’s most restrictive abortion bans in 2019, Alabama itself exempted fertilized eggs created in a lab.Dozens of state bills seeking abortion restrictions have included such exemptions.A Senate version of the Life at Conception Act has included a carve-out for IVF since 2017. It says that “nothing” in the act should be construed as “a prohibition on in vitro fertilization.”

A big question is why the House version of the bill doesn’t include such an exemption. Certainly, some involved might regard destroying embryos in any setting as being wrong. They might regard the language as being somehow unnecessary.

Or perhaps this bill has been more about messaging than a serious legislative effort.

As recently as last year, Julianna Goodman wrote a prescient couple of paragraphs in a perspective piece for The Post:

Some lawmakers who back personhood measures may not realize the full implications of the proposals, says Kaylen Silverberg, a reproductive endocrinologist and the medical director at Texas Fertility Center in Austin. …
During a recent trip to D.C., he spoke with “one of the most conservative members of Congress” who was considering promoting a personhood statute. Silverberg depicted a scenario where an embryologist accidentally drops a dish of embryos and destroys its contents. “Is my embryologist going to be charged with murder, manslaughter?’” he asked the lawmaker, who in turn was “flabbergasted” because he hadn’t realized the measure’s full implications.

The circumstance closely mirrors what the Alabama Supreme Court ruled on.

Texas Gov. Greg Abbott (R) conceded Sunday on CNN, “I’m not sure everybody has really thought about what all the potential problems are, and as a result no one really knows what the potential answers are.”

But even that most innocuous explanation gets at the dilemma for the GOP. It’s one thing to oppose abortion in theory; it’s another to legislate it. That newfound ability to make good on their promises has led to immense difficulties, both morally and politically, given that much of their party wants to go in a direction a huge majority of Americans are not comfortable with.

And Alabama is merely the latest instance of the true believers forcing the issue and making their ideological allies squirm.

This post appeared first on The Washington Post

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