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Trump’s Panicky Eruption Over Embryo Ruling Won’t Fix GOP’s IVF Mess

The Alabama decision revealed the full implications of “fetal personhood,” and Democrats are taking the fight to the states where they can win it.

Trump looking panicked
Kent Nishimura/Bloomberg/Getty Images

When Donald Trump attacked the recent Alabama Supreme Court ruling that frozen embryos should be considered children, it was widely seen as a glaring indicator of a new political reality. Trump and Republicans, analysts noted, recognize the dangers of appearing aligned against in vitro fertilization and are bolting from the decision as fast as possible.

But for a largely overlooked reason, this political morass will be harder for Republicans to extricate themselves from than they might think. This issue will continue playing out not just on the federal level but also at the level of the states, where the true implications of GOP positions on reproductive rights will be harder to evade.

Democrats are planning to make a big issue out of IVF in this year’s battle for control of state legislatures, strategists tell me. This will entail highlighting state-level bills and laws that define fetuses as people and could impact access to IVF, especially now that anti-choice activists are emboldened by the Alabama ruling.

“The stakes have never been higher in the states,” Heather Williams, the president of the Democratic Legislative Campaign Committee, told me, adding that legislative races will help determine whether “women continue to get to choose how, when, and if they have families.”

Those stakes are indeed high. Republicans fully control 28 state legislatures across the country, while Democrats fully control 20. Democrats did regain territory in 2022, taking full control in Michigan and Minnesota. But they are still recovering from the state-level wipeout they suffered in 2010.

This week, Democrats are announcing a new round of spending by the DLCC on 2024 state legislative contests, bringing the total spent to $750,000 this cycle. The group will channel resources into the battle to flip control of the legislatures in Arizona and Wisconsin (where the party just secured fair district maps) and the state House in New Hampshire, suggesting Democrats see opportunities to gain ground in those states. In a surprise, the DLCC also expects to announce investments soon in breaking the GOP supermajority in Kansas, where the governor is a Democrat.

Meanwhile, Democrats plan to highlight the GOP push for so-called “fetal personhood bills,” which seek to enshrine full rights for fetuses on the grounds that life begins at fertilization. According to the Guttmacher Institute, proposals have been introduced in at least a dozen states, reflecting the rush of anti-abortion legislation unleashed by the U.S. Supreme Court decision in 2022 striking down abortion rights.

Many of these bills don’t have protections for IVF, says Candace Gibson, the institute’s director of state policy. Gibson notes that the implications of these proposals for IVF remain murky, as this is largely uncharted legal territory. But she says the Alabama ruling could galvanize some anti-choice activists to push a fetal personhood agenda “even more aggressively.”

The Alabama ruling revolved largely around language in the state constitution. But as The New Republic’s Matt Ford has explained, it demonstrates that the logic of fetal rights leads fairly straightforwardly to prohibitions on IVF, making it a highly significant moment for the fetal personhood movement’s pursuit of state-level legislation.

“For the die-hard anti-choice contingent, the Alabama ruling is going to embolden them to continue to draft laws stating that so-called fetal personhood starts at fertilization,” Joanna Wright, a lawyer who has extensively litigated against state anti-abortion bills, told me. The goal, Wright said, will be to make IVF clearly “illegal in those states.”

More generally, the ruling is a vivid reminder that the future of reproductive rights will likely live or die in the states—and that this could intrude to an untold degree on intensely personal decisions about whether to have children despite infertility. As Williams of the DLCC points out, the Alabama outcome again demonstrates that the “Republican crusade against women” isn’t “just about abortion.”

“It is about control and power,” Williams said. 

Trump’s splenetic reaction to the Alabama news smacked of genuine political panic, illustrating the GOP bind. Under his leadership, Trump tweeted, the GOP would support “the availability of fertility treatments like IVF in every State in America,” adding that “the OVERWHELMING MAJORITY of Americans” support IVF to “have a precious baby.”

In other words, Trump is telling party members that it would be disastrous for him—and them—to align the GOP against IVF. Republicans know this: Many of them, including in Alabama, have rushed to declare that they too support access to IFV treatments, seeking to balance this with support for the idea that life begins at fertilization.

But it will be hard for Republicans to execute that straddle. First, as Brian Beutler notes, Trump and the GOP own the Alabama outcome: Trump appointed the U.S. Supreme Court justices who helped overturn abortion rights. And 125 House Republicans have already signed onto a bill that defines “human being” as beginning at the moment of fertilization—with no IVF exception.

What’s more, Democrats see an opening in the obvious problems around squaring fetal personhood with defending IVF. Notably, lawmakers have introduced personhood bills in states like Arizona and Kansas, where Democrats hope for gains.  

All this highlights some basic truths about Trump-era politics. State legislatures—where gerrymandering and low-turnout elections driven by hypercommitted activists often reign—have become ground zero for reactionary culture warring on many fronts, from reproductive rights to book bans to restrictions on pro-LGBTQ heresies. Important elements in the GOP coalition want fetal personhood laws as well, which could trap GOP legislators between those elements and more moderate suburban swing voters.

Meanwhile, the Alabama decision is crystallizing a sense among Democrats that the last stand in defense of reproductive rights will unfold in the states. That’s enabling them to mobilize a socially liberal coalition in these oft-overlooked local contests while dramatically raising their stakes.

For too long, the DLCC’s Williams said, Republicans have gotten away with “fly by night” tactics, in which they pass “egregious, horrific laws” and then “preserve their own power through backdoor deals on redistricting.” Now, said Williams, “they are going to be held accountable.”