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Ala. court ruling that frozen embryos are children shocked some. Others saw it coming

A MARTÍNEZ, HOST:

The debate over in vitro fertilization, or IVF, has become an unexpected addition to this year's election season. That is, of course, thanks to an Alabama Supreme Court ruling last month that frozen embryos can be considered children, putting IVF doctors and clinics in the crosshairs of civil and criminal liability if an embryo is destroyed. Many Americans were shocked at the ruling, even some abortion rights opponents. But some people saw it coming. NPR's domestic extremism correspondent Odette Yousef joins us now to talk more about this. So why were some expecting something like this Alabama decision?

ODETTE YOUSEF, BYLINE: Well, A, what researchers and reproductive rights activists told me is that IVF has always been in conflict with anti-abortion rights positions on life beginning at conception or fetuses as people entitled to full rights. And so eventually, this kind of a legal determination was bound to happen. But what's worth really noting from these experts is that their attention now is on laws that are already on the books in some places, because these have already laid groundwork for decisions that have undercut access to things that are quite popular, like IVF services, and they could be used to extend the criminal framework around pregnancy.

MARTÍNEZ: OK. Extend the criminal framework around pregnancy. What does that mean?

YOUSEF: Well, one example of this is how the idea of fetal personhood made its way into criminal statutes. You know, this is the idea that embryos or fetuses have full rights under the law. Here's Dana Sussman of Pregnancy Justice.

DANA SUSSMAN: I'm just going to go back to Roe, to 1973. Immediately in the days after that decision, there were proposals to codify some form of fetal personhood, but it did not gain traction until we saw this first wave of this in the late '80s and early '90s when the war on drugs was on a collision course with the war on abortion.

YOUSEF: So what Sussman is referring to there, A, was this moral panic around so-called crack babies, you know, this widespread hysteria decades ago that children who were exposed to crack cocaine in utero would grow to have a number of problems, which, you know, studies now show that there's been no significant difference in their life outcomes compared with other children.

MARTÍNEZ: All right. So what does that have to do with the decision from Alabama?

YOUSEF: So this was a moment that this fringe idea at the time of fetal personhood was able to make its way into the popular imagination and even into law. You know, the narrative contained a helpless victim, you know, these children in utero, a scapegoat that perhaps most of the American public found unsympathetic at the time, namely poor, Black women who use drugs. And the lasting legacy is that it entrenched this concept of fetal personhood into some states' criminal codes. That led to the jailing of hundreds of pregnant people, and it laid the groundwork for this IVF ruling.

MARTÍNEZ: And how many states have fetal personhood laws?

YOUSEF: The Center for Reproductive Rights says that only four states currently have those laws, including Alabama, but 13 have bills that are currently being considered, you know, everywhere from Alaska to Illinois to Massachusetts. So the lesson that reproductive rights advocates take from this is that it's not just about narrowly preserving the legal right to abortion or to contraception, you know, it's also about keeping laws like these off the books.

MARTÍNEZ: All right. NPR's domestic extremism correspondent, Odette Yousef. Thanks a lot.

YOUSEF: Thank you. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

A Martínez is one of the hosts of Morning Edition and Up First. He came to NPR in 2021 and is based out of NPR West.
Odette Yousef
Odette Yousef is a National Security correspondent focusing on extremism.
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