Alabama’s Supreme Court declared embryos are children. It could happen in NC | Opinion

The Alabama Supreme Court made an unprecedented and potentially pivotal decision last week when it declared that frozen embryos are children in the eyes of the law.

It raises concerns about the future of infertility treatment in Alabama and possibly across the country, as other state courts could use the Alabama case as precedent in similar decisions. Already, hospitals and clinics across Alabama have begun pausing IVF treatments, citing new legal risks to providers due to the decision.

But the consequences of the ruling could extend beyond IVF, beginning a new front in the fight over reproductive rights and freedom.

The ruling gives credence to the concept of “fetal personhood,” which has been a goal of the anti-abortion movement in the United States for decades. So-called fetal personhood laws would grant fetuses the same rights and protections of any born person. Under such laws, abortion could then be considered murder, and therefore outlawed entirely.

What is the likelihood of something like that happening in, say, North Carolina? Maxine Eichner, Graham Kenan Distinguished Professor of Law at the UNC School of Law, said it’s not entirely out of the question, especially with a state Supreme Court that acts increasingly political.

While experts like Eichner believe that the end goal of the fetal personhood movement is to ultimately outlaw abortion, it’s being done gradually, in cases that have nothing to do with abortion at all. In Alabama, the decision stemmed from wrongful death lawsuits brought by couples whose frozen embryos were destroyed in an accident at a fertility clinic. Alabama has a law that allows parents to sue over the death of a minor child, and the court ruled that “minor child” includes unborn children, even embryos.

“Given the politics and the tremendous amount of resistance that surrounded removing the right to choose abortion folks who are seeking to restrict abortion are being a little more cautious, and you get a more gradual movement towards restricting abortion based on the idea of fetal personhood,” Eichner said.

Sympathy for the idea of “fetal personhood” already exists in North Carolina. Eichner pointed to a North Carolina Court of Appeals ruling from October that declared that “life begins at conception.” The case in question terminated a mother’s parental rights for conduct during her pregnancy. The ruling was later withdrawn, but Eichner says it still represents a disturbing attempt to insert fetal personhood into the law.

As with the Alabama ruling, what makes it particularly concerning is that it’s not the legislature injecting fetal personhood into the law, Eichner said. Rather, judges are moving out in front of the legislature and expanding the definition of a “child” themselves.

In South Carolina, the idea of fetal personhood is already somewhat present in the law. South Carolina is one of several states — including Alabama — where the actions of pregnant people are criminalized. An investigation published last year by The Marshall Project and The Post & Courier found that hundreds of South Carolina women have been charged unlawful neglect of a child or homicide by child abuse for alleged drug use during pregnancy, because the state Supreme Court has ruled that child abuse laws extend to a viable fetus. South Carolina legislators have tried in recent years to officially enshrine fetal personhood in the law, effectively banning all abortions in the state, but haven’t been successful.

Of course, these gradual steps toward fetal personhood are still receiving political pushback, so it’s hard to say whether the anti-abortion movement will ever find success in taking it further. The Alabama decision has even received criticism from Republicans, not least because restricting IVF is even more politically unpopular than restricting abortions. Former President Donald Trump said he “strongly supports” IVF and called on Alabama lawmakers to find a solution to preserve the availability of IVF in the state. Meanwhile, U.S. Rep. Nancy Mace of South Carolina suggested that some House Republicans are looking at federal legislation to protect access to IVF.

“I tell my students Dobbs is like the Wild West,” Eichner said. “We’ve removed this settled law and now it’s very difficult to know what issues are gonna come up next, because things are changing by the minute.”