Why we’re actually fighting over a medical procedure that allows the infertile to have children

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There’s no shortage of things to quarrel about these days, yet we keep finding more.

Not long ago, in vitro fertilization — the medical process by which human sperm and ovum are united in clinical conditions outside a woman’s body and later implanted, giving the otherwise childless a chance at having a child — would have met scant resistance in the chambers of political power.

Welcome to 2024 and the looming American dystopia.

Last month, Virginia’s Democratic U.S. senators, Tim Kaine and Mark Warner, were copatrons (along with most of the Senate’s Democratic conference) of a bill sponsored by Sens. Tammy Duckworth and Patty Murray that would establish legal protections for IVF.

The bill was in response to an extraordinary ruling in February by Alabama’s Supreme Court that outlawed IVF. It held that embryos frozen in liquid nitrogen at a temperature of 320 degrees below zero Fahrenheit are legally no different from a newborn in its mother’s arms or a kindergartner on a school bus. Since there are more embryos on ice than a woman could reasonably carry to term, the choice becomes whether to leave them frozen permanently or, eventually, to destroy them. To IVF foes, that’s homicide.

The ruling instantly suspended IVF procedures across Alabama and produced panic and heartbreak among aspiring parents for whom it was their best, or last, shot at having offspring and had spent many thousands of dollars out of pocket toward that end.

According to our sister publication, The Alabama Reflector , Justice Jay Mitchell tied his majority opinion to a state law enacted seven years after the Civil War authorizing lawsuits over the wrongful deaths of children and a 2018 Alabama constitutional amendment that requires the state to “ensure the protection of the rights of the unborn child.”

Mitchell wrote that neither specified an exception for frozen embryos. That goes without saying for the statute, passed 106 years before the first birth from an extracorporeal conception, when electricity was in its infancy and refrigeration was decades in the future.

Greater illumination into motivations behind the decision, however, derive from a concurring opinion by Alabama’s chief justice, Tom Parker, that reads more like a sermon than a legal treatise.

“…[E]ven before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory,” Parker wrote. “We believe that each human being, from the moment of conception, is made in the image of God, created by Him to reflect His likeness.”

The state constitutional amendment, which conveys personhood at a somewhat uncertain instant of conception, was approved by Alabama’s conservative, largely evangelical and fundamentalist religious electorate six years ago to deter abortion. When the court applied it to IVF, however, the volume and intensity of the resulting outrage sent the Republican-ruled legislature scurrying back to Montgomery to promptly enact legislation that put IVF clinics back in operation.

There’s a place for proselytizing — by all faiths — and it should be afforded all the robust protections of our First Amendment. But the First Amendment also prohibits the government from establishing a religion, a safeguard against an American theocracy enacted by founders who bore the Church of England’s yoke before winning independence from Britain.

When religion — in this case, segments of Christianity — muscles its doctrines into public policy to be imposed upon those who don’t share them, the resulting conflict is uncivil and ubiquitous. It produces the sort of uncompromising, paralyzed politics that grips our nation’s tribalized culture today.

Polling consistently shows majorities of Americans support abortion rights in some form. A recent poll by the Pew Research Center says 62% of Americans surveyed believe abortion should be legal in all or most cases. A Gallup survey found that 69% said abortions should generally be legal in the first trimester. Support for abortions declines the longer a fetus progresses toward birth.

As this near-existential election year moves toward its decisive conclusion on Nov. 5, one of the few issues that augurs in favor of Democrats is that of women’s reproductive freedom. Until recently, that was abortion, particularly after the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision struck down 49 years of federal protections for abortion access and made abortion a state-by-state issue. Virginia is the lone southern state that has not banned or severely curbed abortion access.

It galvanized abortion rights voters, especially women, and staunched what was expected to be a crimson wave midterm congressional election for Republicans in 2022. Rather than win back a Senate majority as predicted, Democrats narrowly retained power after a late November runoff election in Georgia.

Which brings us back to June’s effort in the Senate to codify IVF protections. It failed on a near party-line vote with 47 Republicans in opposition. Forty-four Democrats, two Republicans and two independents voted for it, but that’s shy of the 60 votes needed to advance bills in the Senate. But even in its demise, it served a purpose.

There’s no small amount of partisan theater in votes like these, particularly in high-stakes election years. The goal is to force one party to take damaging, adversarial votes that the other party can use to rally sympathetic voters.

“This is the normal course of events in Congress in election years,” said Stephen Farnsworth, professor of political science and director of the Center for Leadership and Media Studies at Mary Washington University in Fredericksburg. “Legislating may be the driving factor in year one, but demonizing your opponent is the prominent factor in year two of the election cycle.”

“Both parties do this. The Republicans, when they were in the majority, forced the Democrats to take tough votes on immigration and, when Obamacare was unpopular, Republicans pushed for Obamacare votes,” he said.

Kaine stands to be a direct beneficiary of the IVF bill’s death. He’s on this fall’s ballot seeking his third Senate term and hitting his Republican challenger, retired Navy officer Hung Cao, relentlessly on the reproductive rights issue. Cao said in a debate for a U.S. House seat two years ago that life “begins at conception” and he felt compelled to protect it.

They don’t like abortion, but Kaine’s GOP challengers say they won’t seek a federal ban

Other Democrats can reap a residual benefit by using the outcome in a broader message about a GOP threat to women’s rights, particularly in two of the nation’s most fiercely contested U.S. House races. Incumbent Democratic Reps. Abigail Spanberger and Jennifer Wexton — both forceful advocates for reproductive rights — are leaving seats they won in 2018 in Virginia’s 7th and 10th congressional districts, respectively. Spanberger is a 2025 candidate for governor and Wexton is departing for health reasons.

“The painful reality about politics these days is that we’re talking about trench warfare,” Farnsworth said. “An unpopular vote here, an unpopular vote there may weaken a party in a swing district.”

Spanberger’s seat is a prime example, he said. “In that Washington-area district, the greater the focus is on the Dobbs decision and IVF, the better for a Democratic candidate.”

Women are a potent voting bloc. Pissed off women are a force of nature.

In a year when Kaine and down-ballot Democrats swim upstream against unfavorable issues such as the economy, immigration and an octogenarian president whose recent debate debacle leaves overwhelming majorities — 72% — believing he’s too old to perform, a force of nature is a comforting thing to have.

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