Alabama’s Decision is Alabama’s Problem, Not the Nation’s
Needlessly nationalizing strictly local issues coarsens national polarization.
UPDATE: On February 29, 2024, two days after this post was originally published, the Alabama Legislature passed legislation to protect fertility clinics from lawsuits, thus securing access to IVF services.
Last week, the Alabama Supreme Court ruled that frozen embryos can be considered children under state law. The Wrongful Death of a Minor Act allows parents to recover damages from the death of a child, a ruling stemming from plaintiffs in the case having their embryos destroyed at a fertility clinic in the quest for pregnancy through in vitro fertilization (IVF). As reported by The Wall Street Journal:
“The disagreement was over whether the state’s law makes an exception for embryos outside a uterus when they are killed. The court said nothing in the law prevents it from applying to frozen embryos.”
From my understanding of the case, the plaintiffs sought damages outside the Wrongful Death of a Minor Act, but their case for punitive damages under the law was dismissed by the trial court because the court did not find that the embryos fit the legal definition of “person” or “child”. The plaintiffs' attempt to claim compensatory damages via common law was also dismissed, as Alabama appears to have a prohibition against the recovery of such damages for the loss of human life.
The plaintiffs' appeal, and the case advances to the Supreme Court of Alabama which finds that, for the purposes of claiming punitive damages, embryos outside of the uterus can be considered “children”. Importantly, the court said nothing in the law in question prevents it from applying to frozen embryos. As a result, clinics in Alabama are now operating within a gray area. If embryos are now considered “children”, the discarding of embryos for medical reasons in pursuit of assisting an IVF pregnancy, could be liable for damages. The Journal reports that at least one clinic has received calls from clients who are requesting their embryos be moved to out-of-state labs. IVFs account for roughly 2 percent of births in the United States.
Now that the Alabama Supreme Court has passed down its ruling, it’ll be up to the Alabama legislature and Gov. Kay Ivey’s administration to provide clarity on the intent and the execution of the law that pertains to the decision.
Naturally, despite the state particularities of this ruling, it has become needlessly nationalized. The headline The Journal settled on for their story — “Alabama’s Embryo Ruling Challenges IVF Practices Nationwide” — contains exactly zero substance to the claim that the ruling in Alabama challenges IVF practices nationwide. But in an attempt to keep non-Alabama readers engaged, national media outlets are incentivized to artificially raise the stakes of a clearly local issue to a national level by warning about politically implausible hypothetical scenarios. Knowing this, President Biden criticized the ruling and blamed Donald Trump, as Republican Senate candidates and Trump himself came out to voice their support for IVF, perhaps knowing full well that any distinction between the Alabama Supreme Court and federal Republicans would be treated as nonexistent by media outlets.
For this ruling to challenge IVF practices, either Congress or most states — not just conservative-leaning states — would need to not only pass laws defining embryos outside of the uterus as children but prohibit the destruction of embryos in pursuit of IVF. That isn’t going to happen.
Rep. Alexander Mooney, Republican of West Virginia’s 2nd congressional district, re-introduced a bill defining life beginning at conception, which of course includes embryos. 125 Republicans, (about 60 percent of Republicans or roughly 30 percent of Congress) sponsored the bill. After the Alabama ruling, House Speaker Mike Johnson said he supports IVF, despite sponsoring Mooney’s legislation. A similar bill in Congress introduced by Sen. Rand Paul, Republican of Kentucky, states that:
“Nothing in this Act shall be construed to require the prosecution of any woman for the death of her unborn child, a prohibition on in vitro fertilization, or a prohibition on use of birth control or another means of preventing fertilization.”
Bills to ban IVF, especially in Congress, aren’t going anywhere. IVF remains legal, including in Alabama, but the court’s decision clearly complicates what the implications are for facilities who have to destroy embryos in pursuit of fertilization for their clients.
For over a decade now, the political media have lamented the toxicity of national political polarization. Despite knowing full well how low the stakes are on this issue right now, these same institutions contribute to that polarization. In this instance and so many like it, national figures have to answer for local issues often where they have no jurisdiction. Federal Republicans don’t need to answer for Alabama any more than federal Democrats need to answer for the mass theft happening in San Francisco. For one, any political observer cannot maintain their sanity by treating every issue as one of national import. That leads to the kind of existential dread that so many younger people feel about the future of society.
More importantly, when the distinction between federal and local jurisdictions is erased and parties are defined by their most extreme-yet-contained wings, it makes cooperation more difficult. Further, conflating policies that apply to different jurisdictions encourages the talking-past-one-another that animates partisan polarization.
An alternative approach to covering this story might involve national media figures encouraging greater involvement in local and state public affairs — not as a means to federal action and a mythical sort of uniformity, but as a matter of retaining their own influence in their state among a union of states.
This issue and so many like it raise the question of how committed we are to democracy and pluralism — but especially the primary driver that has buttressed the two’s coexistence: federalism. Would we prefer a legal system that minimizes such a seemingly extreme ruling to one segment of the country — or would we prefer instead, in the pursuit of uniformity, to adopt a “streamlined”, if you will, legal system that raises the probability of such a ruling applying to the entirety of the nation. These are some of the questions That Patchwork will delve into.
Federalism is a means to impede power, regardless of substance or bearer of that power. It grants one the opportunity to pursue, with others, a version of the ideal while retaining protection from that which they don’t believe to be the ideal. That should be at the forefront of any mind who is skeptical of authority, and particularly those concerned with the Republican Party’s trajectory and intentions after the Dobbs decision.
Right now, this ruling is entirely the business of Alabama for Alabama.
Dear Mr. Showah,
" . . . newsletter covering democracy, economics and culture from a decentralist angle." Interesting perspective. Reminds me of States Rights vs. the U.S. Government debates. But, what exactly, is a decentralist angle? Please inform us.