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Legislation may not be enough to allow IVF clinics to resume operation in Alabama. You might not know that from mainstream news coverage.

Special Programs Abortion Rights & Reproductive Health

Written by Jasmine Geonzon

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After the Alabama Supreme Court ruled that frozen embryos created during in vitro fertilization are “extrauterine children” and many fertility clinics in the state elected to pause IVF treatments, bills intended to protect IVF have overwhelmingly passed both chambers of the Alabama legislature. But in their reporting on the bills, mainstream news outlets covering the legislation have repeatedly omitted crucial details, including that the bills seem to conflict with the Alabama Constitution.

  • Legislation proposed by state Republicans aims to fix the IVF access crisis, but it may not be effective

    • Last month, the Alabama Supreme Court ruled that frozen embryos are “extrauterine children,” prompting fertility clinics around the state to pause operations. [National Public Radio, 2/23/24]
    • Alabama House and Senate committees approved two bills that aim to provide a “temporary fix” by protecting IVF providers from prosecution and civil lawsuits. As these proposals advanced in the state legislature, the separate House and Senate bills “were amended in committee Tuesday to make them identical” and could be approved as early as Wednesday. [The Associated Press, 2/29/24; AL.com, 3/5/24]
    • The legislation, if signed into law, appear to be in direct conflict with the state’s 2018 “Sanctity of Life” constitutional amendment and could be subject to legal challenges. The amendment, which state Supreme Court Chief Justice Tom Parker cited in his concurring opinion, dictates that the state’s laws must “recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.” Republican sponsors of the bills have also noted that, if enacted, the bills would serve only as “temporary fixes” and would require the legislature to take further action in order to create more long-term solutions to safeguard IVF. [Alabama Reflector, 2/19/24, 2/29/24; Ballotpedia.org, accessed 3/4/24]
    • Slate’s Mark Joseph Stern wrote that “even if the Alabama Legislature wanted to legalize IVF as it’s currently practiced, the state constitution would prohibit it from doing so.” Interim legal director of the ACLU of Alabama Alison Mollman stated that “to get at the heart of this issue,” the state would need to “repeal the 2018 constitutional amendment that allowed this decision to happen in the first place,” which could only happen through another voter-approved constitutional amendment. [Slate, 2/21/24; American Civil Liberties Union, 2/29/24]
    • There is no guarantee that either bill would protect IVF providers from facing legal action. University of Alabama law professor Susan Pace Hamill told Axios that the bills “don’t address” the 2018 constitutional amendment or the conflict it poses, leaving experts unsure on “whether patients or providers involved in IVF can be confident they have immunity from prosecution in Alabama.” The American Society for Reproductive Medicine has referred to the bills as “inadequate” and noted that access to IVF may still be limbo: “We believe these bills will not provide the assurances Alabama’s fertility physicians need to be confident they can continue to provide the best standard of care to their patients without putting themselves, their colleagues, and their patients at legal risk.” [Axios, 3/4/24; American Society for Reproductive Medicine, 2/29/24]

  • Mainstream outlets covering the Alabama state legislature often excluded key information, including the likely constitutional conflict

    • CBS News’ article on the legislation made no mention of the conflict between the bills and the 2018 amendment and failed to include opinions from reproductive health activists. The piece also included a quote from an Alabama lawmaker who likened the destruction of embryos through the IVF process to a “silent holocaust going on in our state.” [CBS News, 3/1/24]
    • ABC News’ piece about the legislation incorrectly suggested that the bills would “restore access to in vitro fertilization” even though advocates have noted that the bills have crucial limitations. ABC also provided no information about the 2018 amendment and its threat to the bills. [ABC News, 2/29/24]
    • Politico misleadingly described the bills’ passage in a headline, writing, “Alabama legislature votes to restore IVF access.” [Politico, 2/29/24]
    • A piece from USA Today mentioned neither the 2018 state constitutional amendment nor its threat to the recently passed bills in the Alabama legislature. Additionally, coverage from the outlet included no opposing voices, such as Democratic lawmakers, reproductive health experts, or IVF patients. [USA Today, 3/1/24]
    • Though an NBC News piece included voices critical of the legislation, the article failed to mention the 2018 amendment and the threat it poses to proposed IVF protections. NBC also noted former President Donald Trump’s recently voiced support for protecting IVF, but did not mention that his appointment of anti-abortion justices to the Supreme Court ultimately led to the reversal of Roe v. Wade, making the Alabama IVF decision possible. [NBC News, 2/29/24; CNN, 2/24/24]
    • In its write-up, The Washington Post did mention the 2018 constitutional amendment cited by the state Supreme Court, but did not elaborate on how the law could present legal hurdles for restoring IVF access. The Post did, however, highlight the accusations of hypocrisy faced by Alabama Republicans who have assured voters that they will act to safeguard IVF despite also saying they believe life begins at conception. [The Washington Post, 2/29/24]
    • The Murdoch family-owned Wall Street Journal stated that the Alabama Supreme Court’s IVF ruling hinged on the 2018 amendment without further describing the apparent conflicts between the “Sanctity of Life” law and the newly proposed IVF legislation. [The Wall Street Journal, 2/29/24]