The Alabama Supreme Court ruling that temporarily stopped in vitro fertilization services in Alabama last year has emerged as an issue in the race for state attorney general.

Former Associate Justice Jay Mitchell, who wrote the opinion, resigned from the court Monday and is expected to announce he will run for AG.

Blount County District Attorney Pamela Casey, who announced her candidacy for attorney general in January, has two children by IVF.

Casey said voters will remember the court decision, which caused IVF clinics to pause services because of liability concerns.

“It’s not a political issue for me,” Casey said. “It’s a personal issue. We were given less than a 5% chance to have a baby. And without IVF, I wouldn’t be a mother.

“And after his opinion, we saw IVF across the state of Alabama come to a stop. And I cannot imagine the pain that hundreds if not thousands of women in this state went through.”

After last year’s ruling, IVF providers and families flocked to Montgomery to urge the Legislature to address the issue.

Lawmakers quickly passed a bill intended to give clinics immunity, and most services resumed.

Mitchell wrote the main opinion on IVF but was not alone in his decision.

Six of the other eight justices on the Alabama Supreme Court concurred in the result. One concurred in part and dissented in part. One justice dissented.

The court ruled that frozen embryos held in storage by IVF clinics had the legal status of children under Alabama’s Wrongful Death of a Minor Act.

The ruling came in lawsuits filed by three couples whose frozen embryos were accidentally destroyed at the Center for Reproductive Medicine in Mobile.

A trial court dismissed the lawsuits, saying the embryos did not meet the definition of children under the Wrongful Death of a Minor Act.

But the Supreme Court decision overturned that, ruling that under Alabama case law and under the state Constitution, the embryos were considered children.

“This Court has long held that unborn children are ‘children’ for purposes of Alabama’s Wrongful Death of a Minor Act,” Mitchell wrote in the main opinion.

“The central question presented in these consolidated appeals, which involve the death of embryos kept in a cryogenic nursery, is whether the Act contains an unwritten exception to that rule for extrauterine children — that is, unborn children who are located outside of a biological uterus at the time they are killed.

“Under existing black-letter law, the answer to that question is no: the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location.”

Casey said she sympathized with the couples who sued.

“I can’t imagine what the families went through who had that happen at the fertility clinic,” Casey said. “I would have been devastated had I gotten a call that embryos had been destroyed.

“But I also think that decision was very political versus being logical and I think it was done for political gain.”

Casey declined to elaborate on why she thought the ruling was political.

The Legislature, in passing the bill intended to give clinics immunity, did not address the question of whether embryos stored outside the womb are unborn children.

Mitchell, in his court opinion, acknowledged the potential impact of the ruling on IVF providers because of the liability concerns. But he said the court was bound by the law, not the consequences.

“While we appreciate the defendants’ concerns, these types of policy-focused arguments belong before the Legislature, not this Court,” Mitchell wrote.

“Here, the text of the Wrongful Death of a Minor Act is sweeping and unqualified,” he wrote. “It applies to all children, born and unborn, without limitation. It is not the role of this Court to craft a new limitation based on our own view of what is or is not wise public policy.”

Mitchell also noted that Alabama voters approved a constitutional amendment in 2018 to recognize the rights of the unborn.

In Mitchell’s letter to Gov. Kay Ivey on Monday resigning from the court, he mentioned several of his judicial rulings.

“During my judicial tenure, I have written key judicial opinions that uphold Alabama’s criminal laws and keep violent offenders locked up; that protect the sanctity of human life and confirm the truth that life begins at conception; and that keep wokeness and DEI out of our courts and the legal profession,” Mitchell wrote.

Mitchell wrote that he wants to help promote President Trump’s agenda and plans an announcement in the coming days.

“President Trump is moving boldly to restore the United States Constitution – and we must ensure that his agenda takes root not only in Washington, but also in the states,” he wrote. “I feel called to play a larger role in that effort in Alabama.”

Both Casey and Mitchell are Republicans. The primary is May 19, 2026.

Casey was elected Blount County district attorney in 2010 and has been reelected twice. Before her election, she served as assistant attorney general and deputy attorney general under AG Troy King, starting in 2007.

Mitchell was elected to the Supreme Court in 2018 and reelected last year. Before his election to the court, Mitchell was a lawyer with the Maynard, Cooper & Gale firm, which is now the Maynard Nexsen firm.

See also: Alabama pro-life leaders push for IVF bill recognizing embryos as children: Will it happen?

According to the American Society for Reproductive Medicine, 95,860 babies were born in the United States in 2023 through IVF, about 2.6% of all births.

“IVF is a huge issue,” Casey said. “We saw President Trump make it one of his main agendas in the first 100 days.”

Trump issued an executive order in February calling for policies that make IVF more affordable, saying that the procedure can cost $12,000 to $25,000 per cycle and that multiple cycles are sometimes needed to get pregnant.

Casey gave birth to her daughter, Claire, 4, and her son, Glen, 6, after she and her husband Robert Austin navigated through what she said was an arduous IVF process. She said she had multiple surgeries to prepare.

“It was a year and a half process for us,” Casey said. “And we were one of the blessed families that were able to have a baby with IVF. I had friends that it didn’t work for.”

Casey said she people whose families have not been involved with IVF probably do not understand the difficulties and strain.

“I don’t think people understand IVF,” Casey said. “I really didn’t understand IVF until I needed IVF.”

“I just don’t think people get it,” she said. “IVF moms and dads get it. I don’t think Jay Mitchell gets it.”