A Few More Notes On The Biology Of Pregnancy

There’s a reason you haven’t seen a statement yet from Josh Hawley on the Alabama court ruling jeopardizing access to IVF for families.

He pioneered the idea. Read it here ⬇️ https://t.co/bCp7dBQye4

— Lucas Kunce (@LucasKunceMO) February 23, 2024

Earlier this month, the Alabama supreme court ruled embryos, which are created in the IVF process, are “extrauterine children” in the eyes of the law. The decision thrust fertility treatments in the state into chaos, as clinics and attorneys said the practice of modern reproductive medicine in Alabama may no longer be legal. 

The IVF process typically relies on the creation of multiple embryos, fertilized eggs of several hundred cells called blastocysts. Some of those embryos may be discarded during the IVF because of genetic testing, or may not survive the freeze-thaw process of cryogenic storage (used to create embryos for future IVF rounds). 

The state supreme court’s decision cast into doubt whether multiple stages of the IVF process were legal, as it appeared doctors could be held liable for “wrongful death” if an embryo was destroyed during routine treatment. 

The decision has infuriated doctors across the country and led to confusion that has stopped IVF at three of the state’s eight fertility clinics. In 2021, the state’s two larger programs at the University of Alabama and Alabama Fertility Specialists together performed nearly 900 IVF cycles resulting in 273 pregnancies, according to data submitted to the Centers for Disease Control and Prevention (CDC).

First, a zygote is not a blastocyst is not an embryo. Ergo, it is not a person. I understand Catholic doctrine disagrees, but I’m talking about the standard for civil law, not ecclesiastical law.

Unless we are going to prosecute a woman for murder every time she has sex but doesn’t get pregnant (implantation of zygote), then the position of the Alabama Supreme Court is a legal absurdity. Especially since the logical conclusion feared by IVF providers in Alabama is that the loss of any frozen zygotes could be a wrongful death claim or even criminal indictment. No, you might not lose, but who wants to pay the lawyers to constantly fend off such challenges?

And how is the GOP tied intimately to this decision? By the umbilical cord, if you’ll pardon the metaphor:

Erin Hawley, the senator’s wife, has become a conservative legal force, and was on the team of attorneys who helped overturn Roe v Wade, the nearly 50-year-old precedent that once protected the right to terminate a pregnancy, and which paved the way for Alabama’s recent court decision. 

In 2013, Hawley authored an opinion article in Missouri’s Springfield News-Leader that criticized a federal decision requiring employers to provide access to contraception through health insurance. In the article, Hawley said the morning-after pill, “may induce an abortion by preventing implantation of a fertilized egg”, effectively the same logic accepted by justices at the Alabama supreme court that led to shutdowns of IVF. 

Doctors do not consider a person pregnant until both fertilization and implantation occur. For that reason, contraception is not considered “abortifacient”, because there is no pregnancy. In fact, the morning-after pill works “before release of an egg from the ovary”, according to the US Food and Drug Administration. 

Separately, Hawley served as a member of the legal team that argued the Hobby Lobby case before the US supreme court from 2011 to 2015. In that case, Hawley and others on the team argued that private companies should not be required to cover birth control methods that were “more like abortifacients” because, they alleged, the contraception prevented an embryo from implanting in the uterus wall.

This is why it’s important to distinguish between a zygote and a blastocyst and an embryo in the law; because even the definition of “pregnancy” is important.