An all-Republican Alabama Supreme Court ruling on Feb. 16 defined life as beginning at conception, effectively granting personhood to embryos. This decision has thrown the state’s IVF clinics into chaos, as they cease operations for fear of prosecution.  In response, Alabama’s hastily passed bills granting civil and criminal immunity to IVF providers, a short-term fix to encourage clinics to reopen and serve families on Thursday. The move came a day after Senate Republicans blocked legislation that would provide national protection of assisted fertility, sponsored by Sen. Tammy Duckworth.

This legal fiasco has brought IVF to the forefront of national conversation, with the decision to consider frozen embryos humans impacting the future of in vitro fertilization in the state, questioning how other states will respond with similar policies, and bringing to light the barriers BIPOC families face in accessing fertility treatment.

California Gov. Gavin Newsom declared the ruling a “war on women” during a Feb. 24 Meet the Press interview, though digging into the details illustrates that this blow to family planning is impacting white, wealthy families the most.

Nearly half of Americans say they or someone they know has used fertility treatment, but these numbers primarily reflect the experiences of white and Asian adults, according to Pew Research Center. Only 26% of adults and one third of Latinos say they or someone in their life has received treatment for infertility, with the high cost being a major barrier.

The Alabama ruling highlights a crucial conversation about racial and economic disparities in reproductive healthcare. While white, wealthy families are facing significant new hurdles, the barriers for BIPOC families are often insurmountable.

“White women, married, the 81% who are over $100,000 in income. This is about you and they are coming for you because ya’ll comprise of over 61% of people who are able to get IVF. When I go into an IVF clinic, nobody else looks like me. They talking to you…” said TV personality Erica Cobb, who has documented her experience as an IVF patient of color on Tik Tok said on a Feb. 21 episode of Daily Blast Live.

What is IVF and why is it under attack?

In IVF, the egg and sperm cells are combined outside of the body and then implanted into the uterus of a person seeking pregnancy. Sometimes, fertilized eggs are frozen and saved for future when IVF results in more than one successful embryo or when done proactively to initiate a later pregnancy, according to John Hopkins Medicine.

Today about 2% of U.S. births result from IVF. But treatment is costly, ranging from $15,000 to $30,000 for a single cycle depending on a patient’s needs and it can take several cycles to conceive. Some insurance may cover fertility treatments, but people with lower incomes are more likely to be on Medicaid or commercial plans which do not offer this type of coverage. This desire to build their family results in some people taking out loans or dipping into their savings accounts or 401(k)s to pay the out-of-pocket costs– if they have those.

“By not covering this for poor folks, we’re saying we don’t want you to reproduce,” medical ethicist Lisa Campo-Engelstein of the University of Texas Medical Branch told the Associated Press in May.

White women, over the age of 35, with higher incomes and private insurance represent the highest demographic of those seeking fertility treatment, according to data analysis by KFF. A 2020 study by Northwestern Feinberg School of Medicine on disparities in fertility care found over 75% of participants were white.

Thought leaders like Erica Hart, sex educator and activist, point to the ruling as a measure to uphold white supremacy amidst a declining white population.

“We have seen over the past 10 years is a decline in white people having children, and trust me the state notices that and if you remember Charlottesville, this is directly in line with that, and in fear of white people being in declining numbers and Black and non-Black people of color literally taking over ” Hart said in a Feb. 22 Instagram video.

In 2018, white Americans accounted for less than half of the population under 15 for the first time, and the decline is projected to continue, as the number of births declines and the country continues to diversity.

Catholic and Evangelical leaders have spoken out against IVF, but have used the product of these services to grow Christian households. The Christian adoption agency Nightlight  runs the Snowflakes embryo adoption program connecting unused embryos to prospective families. This program received federal funding through former President George W. Bush’s Embryo Adoption Awareness Campaign from 2022 to 2013, which Trump restarted and now grants $1 million to embryo adoption agencies each year, according to Mother Jones.

The Alabama ruling leaves the fate of hundreds of thousands of frozen embryos unclear. It also raises the question of whether states like Louisiana, where embryos cannot be legally destroyed, will follow suit.  The Department of Health and Human Services estimated there were about 600,000 frozen embryos across the country in 2020, while the National Embryo Donation Center places the number closer to 1 million, according to USA Today.

Infertility rates are higher for Black women

The National Institute of Child Health and Human Development estimates that about 9% of men and 11% of women of reproductive age in the U.S. experience infertility problems, and the U.S. birth rate has declined overall because of this.

Black women from 33 to 44 are twice as likely to experience infertility than their white counterparts. Yet, they only undergo about 5% of IVF cycles, compared to 85% for white women, according to a 2016 University of South Carolina report.

Dr. Stephanie Marshall Thompson, a fertility specialist at CCRM Fertility blames underdiagnosis of conditions impacting fertility for this disparity.

“When you’re in medical school you’re taught white women have endometriosis and Black women have fibroids, while there are a lot of Black women out there suffering from endometriosis and undiagnosed endometriosis, which is one of the toughest things for us to deal with as fertility specialists,” she said in December on the Fertility FM podcast.

This medical bias and structural racism in healthcare lead to Black women facing worse outcomes. Black IVF patients have more miscarriages than white patients, and a 30% less chance of clinical pregnancy than for all other races, according to a 2021 study published by the American Society for Reproductive Medicine.

Additionally, babies conceived through assisted reproductive technology (ART), which includes IVF, born to Black mothers are four times more likely to die as newborns. The 2022 study also found that the death rates for newborns born to Latino, Asian, and Pacific Islander mothers through ART were double that of white mothers.

Reproductive justice advocates say that this case reflects issues they’ve long vocalized and express concerns on how other states will follow suit.

“What this ruling means is that access to an already inaccessible service for many is going to be further from reach,” said South Texans for Reproductive Justice co-founder Denni Arjona. Reproductive justice means you also have the human right to become a parent if you want to – regardless of your income, where you live, your gender, marital status or ability. We urge you to pay attention to this case and to continue to fight for reproductive justice for all.”