‘We did it in cattle’: Alabama Republicans’ bungled response to IVF patients
On Wednesday morning, some 200 Alabama in vitro fertilization (IVF) patients, doctors and advocates descended on the Alabama state house. Wearing orange and pink shirts for infertility awareness, they carried a variety of handmade signs: “You can’t cuddle an embryo”. “I just want to be a mom”.
For these people and thousands of others in the state, the last two weeks have been tumultuous.
Following the Alabama supreme court’s recent ruling that frozen embryos are considered “children”, IVF clinics in the state have paused their services, leaving people who were in the process of treatment in limbo. Embryo shipping companies have also stopped servicing the state, which means that patients who want to transfer their frozen embryos out of Alabama are unable to do so.
The rally concluded with some direct conversations between advocates and lawmakers. In one such interaction, the Republican state representative Ben Harrison told families that a “solution” would be to freeze the sperm and egg separately, instead of freezing embryos, likening the former procedure to a process used on cows.
“My personal opinion is that we keep them apart and only bring them together for what you need and what you’re willing to implant,” Harrison said. “We did it in cattle all the time.”
The interaction pointed to the disconnect between families who are undergoing the IVF process, doctors who provide IVF services and lawmakers who may not understand the intricacies of and science behind IVF, but who ultimately can decide whether or not it remains legal.
Dr Mamie McLean of Alabama Fertility in Birmingham has become one of the most vocal opponents of the supreme court decision. Flanked by other doctors and IVF patients, she spoke to those attending the rally before they headed into the state house.
“As an infertility physician, I am used to difficult conversations, but these last two weeks have been absolutely heartbreaking,” she said. “Due to the uncertainty posed by the supreme court ruling, we have had to cancel embryo transfers for patients who are longing and praying for a child. We call on the state of Alabama to provide immediate, complete and permanent access to IVF care for the women and families of Alabama.”
Resolve, the national infertility group that helpedorganize the rally, provided pamphlets and advised attendees on how to speak to legislators. “What happens here today in these offices will be looked at by the rest of the country,” said Barbara Collura, the group’s president and CEO. “This potentially could be a roadmap for other states to restrict access to IVF or a roadmap for how to protect access to IVF and family building. Please use your voice.”
Collura said that some desperate families were leaving the state for treatment.
“You’re on these medications for weeks and they cost a lot of money. It’s not covered by insurance for most of these people,” she said of the drugs used during IVF treatment. “You can’t just stop and start up next week, plus we don’t know when this will get fixed.”
‘It could end my journey’
Elizabeth Goldman, who stood with McLean and other advocates during the rally, was diagnosed with Mayer-Rokitansky-Küster-Hauser syndrome when she was 14. The rare disorder means that she was born without a uterus; doctors told her she would never be able to carry her own child. When the University of Alabama launched a uterus transplant program in 2020, Goldman applied, moving with her husband from Mobile to Birmingham (near the school’s campus) in the hope of being able to have a child. After receiving the uterus transplant and undergoing several rounds of IVF treatment and transfers, Goldman was able to conceive. Her daughter, who was with her at the rally, was born in October 2023.
Transplant patients are able to keep the uterus for just one or two deliveries, because of the volatility of a foreign organ, Goldman said. She estimates that she has taken about 20,000 pills since her transplant 22 months ago to keep her body from rejecting the uterus.
Her medical team cleared her to carry a second child, and had planned to proceed with her transfer this March. But the supreme court decision has put that at a standstill. Goldman was on her way to a transfer appointment when she found out through a notification that her clinic had closed.
“With all of the transplant meds I take, it can start to cause kidney damage and other health problems,” she said. “It’s not a life-saving transplant, but a life-giving transplant. So basically, right now I’m healthy. My kidneys are good. But if it continues to drag on, it could end my journey.”
Jamie Heard and Deidra Smith drove to the rally from Birmingham hoping to speak to legislators face to face. Heard used IVF to give birth to her now two-year-old son. She had already started her cycle for a second child when the news of the supreme court’s decision broke. Her clinic cancelled her appointments in the middle of treatment.
“It was heartbreaking,” Heard said. “The emotions for the past few days – I feel like I’ve been grieving a loved one, that’s how heavy my emotions have been.”
Brittany Pettaway and her husband Byron, of Montgomery, currently have eight frozen embryos. She said that this was their only chance of becoming parents. They attended the rally hoping that legislators would make things go “back to literally how it was two weeks ago”.
“We’re just trying to protect that right, and what should be a natural, God-given ability to do,” she said. “It’s surreal, I feel like I’m waiting for someone to say it was a joke, a really horrible emotional nightmare.”
‘I don’t know what the answer is’
After the rally ended, advocates queued outside to make their way into the state house to speak to legislators directly. The floors with offices for senators and representatives were full of people dressed in orange and pink.
Outside one office, a group of families engaged the Alabama state auditor, Andrew Sorrell, in a conversation about their struggles. As auditor, Sorrell reports the state’s receipts, claims and payments, taxes and revenues to the governor.
“I don’t know exactly what the answer is, but we’ve got to find some way to protect the IVF industry while also maintaining our pro-life stance,” he said.
Sorrell suggested women only make as many embryos as they want to use. The advocates explained “the numbers game”, in which a family may produce dozens of eggs, but ultimately only have one or two viable, healthy embryos. Sorrell also suggested the state pay to make it easier for people to adopt frozen embryos.
Following the near immediate backlash to the court’s decision, Republicans across the country initially were mum on the issue. But as clinics across Alabama began to close, they turned heel, speaking out in support of IVF. Alabama’s attorney general promised not to prosecute IVF clinics or patients, while the former president Trump also spoke in support of the procedure. On Wednesday, several bills that would preserve IVF moved forward in the Alabama legislature. One bill, which will progress to the Alabama senate after it received a vote of 94-6 on Thursday, would protect clinics from lawsuits.
But there is no comprehensive solution to preserving IVF in the state and, in the meantime, patients and families, even those mid-treatment, are left waiting.
What happens here today in these offices will be looked at by the rest of the country
Barbara Collura
filed on 14 February. The court instead waited two weeks to announce it would take the case.
That delay was a bit puzzling. “Why wait if the Court is going to actually hear the case on the merits?,” Hasen wrote.
Steve Vladeck, a law professor at the University of Texas, speculated that the delay might reflect some division on the court and that the justices had reached a compromise.
“One camp of some number of justices wanted to keep the prosecution on hold indefinitely; one camp wanted to stay out of the case altogether (or summarily affirm). And neither of those camps apparently had enough votes, which is how we ended up here,” he wrote in a Q&A on his Substack, One First. “So what this says to me is that the “middle” of the Court (the Chief Justice, Justice [Brett] Kavanaugh, and Justice [Amy Coney] Barrett) wants to resolve this issue, but *also* wants to resolve it before the election, even *if* the result is to make it practically impossible for the trial to wrap up by November.”
In an interview, Vladeck noted that the court did not give Trump the best possible outcome – staying the lower case while not hearing the case until the fall. “If the court’s only goal was to help Trump, this was not the way to do it,” he said.
“There’s no neutral. There’s literally nothing the court could have done here that would not have been perceived as starkly political,” he added. “Folks look at this timeline and say, well what the heck, the court could have moved faster. And that’s true, the court could have moved faster. I think the problem is that historically the contexts in which the court has moved faster are, in my view, indisputable legal emergencies and not just political emergencies.”
Regardless of what the supreme court rules on the immunity question, by delaying the trial, it has now directly linked itself to Trump’s fate in the 2024 election. It is a perilous move for a court that is already suffering a credibility crisis and is widely seen as a body that favors Republicans and conservatives.
It comes as the court appears poised to overturn a Colorado decision removing Trump from the 2024 ballot and declare he is eligible. Even though that decision may have broad support on the court, taken with the delay in the immunity case, it may give the public an impression that the court is helping Trump in the election.
Trump is also maneuvering to delay the other election interference case against him in Fulton county, Georgia by making allegations of impropriety by Fulton county district attorney, Fani Willis. If both that case and the federal election case against him are delayed until after the election, it may mean that Trump could return to the presidency without ever facing criminal accountability for his attempts to subvert democracy.