Alabama lawmakers remain without a clear path on a next step toward regulating in vitro fertilization or pursuing any other legislative fixes more than two weeks after the approval of a bill granting legal immunity to health providers if a frozen embryo is destroyed during procedures or storage.

So why is a next step even needed if the IVF clinics are allowed to resume business unfettered by legal threats? Lawmakers are looking at additional action on IVF for a variety of reasons that include defining a child under state law, avoiding blanket immunity for doctors, determining whether the state is responsible for taking custody of abandoned embryos, among other things.

Republicans, instead of a legislative fix, are on a political defensive by those within their own party. Members of the supermajority Alabama Republican Legislature who voted in favor of the bill are now being attacked by anti-abortion conservatives who say those lawmakers gave doctors a free pass in the deaths of unborn children.

Some Republican and Democratic lawmakers reached last week said they are in the dark over the next steps following their March 6 approval of SB157. During the debates leading up to the bill’s approval, the sponsors and Alabama Gov. Kay Ivey admitted that a more in-depth discussion was needed on IVF, though no timetables were given.

“This is an issue we didn’t see coming,” said Rep. Mark Gidley, R-Glencoe. “But yet, you had families that were depending on this procedure. I think with the Alabama House, it’s amazing we went from zero to a bill voted on within five days. That’s amazing.”

Gidley, though, said he would be “remiss to speculate” on when IVF will get its legislative deep dive while the political fallout on the issue continues to generate international attention.

The two main sponsors of the legal immunity bill – Sen. Tim Melson, R-Florence; Rep. Terri Collins, R-Decatur – did not return calls for comment. The governor’s office is also not responding to a request for comment.

A spokesman with Senate Pro Tem Greg Reed, R-Jasper, said the issue “has remained an important issue for senators,” but acknowledged that no new legislation has been offered on the topic.

“I have not heard anything,” said Eric Johnston, an attorney and president of the Alabama Pro-Life Coalition. “I don’t think the members know what is going on.”

‘Pro-life’ battle

What has emerged is a political firecracker for Republicans as the fallout continues over the controversial Feb. 15 ruling by the Alabama State Supreme Court that determined, under Alabama law, that frozen embryos are considered children.

Political operatives representing Republicans, in recent weeks, have engaged in a squabble over dueling interpretations of the term “pro-life.”

“IVF is overwhelmingly popular, even among GOP voters and those who consider themselves pro-life,” said Regina Wagner, a political science professor at the University of Alabama. “However, the organized pro-life movement aims for nothing less than the maximalist position, which would hold that all fertilized eggs are treated as children. The crossroads for the GOP is to decide where they will come down on this issue.”

The friction within the party was illustrated after the conservative American Action Fund released a Facebook petition requesting a group of GOP lawmakers who voted “Yes” on the immunity legislation to reverse course.

The rationale, according to the group, is that the Republican lawmakers voted to “give immunity to any IVF provider, ‘who intentionally causes the death of an unborn child.’”

The Alabama House Majority PAC followed up with text messages that defended the House Republicans by calling the legislative vote to “protect IVF treatments” as “a pro-life vote.”

That same message blasted D.J. Parten, a political operative who founded End Abortion Alabama last year. That group led efforts on legislation assessing criminal charges of murder against a pregnant person if she has an abortion – or even a miscarriage.

Parten declined to comment.

“There was an effort to spread misinformation and outright falsehoods against House members,” said Steve Raby, a representative with the House Majority PAC, adding that a majority of the Alabama House Republicans who voted in support of SB157 were the subject of a petition from Parten’s group.

The House Majority PAC is the political action committee for Republican Speaker Nathaniel Ledbetter, R-Rainsville.

“I appreciate the Speaker and his leadership in letting the public know that not all of these ads being sent to them are truthful and that he wants to set the record straight for how and what our votes were,” said Rep. Matt Simpson, R-Daphne, and one of the targets of the American Action Fund ads.

The Alabama State Republican Party is also weighing in with a more general text message that was released statewide on Friday ahead of the week-long legislative spring break.

That message thanked individual Republican lawmakers for their “consistent pro-family record,” and for being – among other things – a “champion for parental rights.” The message says that Alabama “leads the nation in legislation that protects family values.”

Alabama Republican Party Chairman John Wahl, in an email to AL.com Friday, said the text was to give credit to lawmakers who are “fighting for Alabama’s families” on issues that include “curriculum transparency, reforming DEI programs,” and increasing protections “from indoctrination in our schools.” The statement does not refer specifically to IVF.

Johnston, who authored the state’s 2019 near-total abortion ban, said he was unaware of the text message activity among the pro-Republican groups, though he said he was confronted by a lawmaker upset over the accusations they were being supportive of “baby killing” as it relates to the IVF immunity bill.

“They were asking, ‘why don’t you defend us because we’re pro-life,’” Johnston said. “I told them that I get texts like that all the time. I don’t pay attention to them. If you addressed every (critical) effort, you wouldn’t get anything done.”

Regulating IVF

Johnston said after the passage of SB157, he contacted Reed’s office about the next steps that were under consideration. For Johnston, that meant trying to regulate IVF to protect embryos that could be destroyed within a clinic.

“If they are destroyed, there needs to be some repercussions for that,” he said. “(IVF patients) pay a lot of money and are counting on that not happening. But (Republican lawmakers) are sensitive about this and don’t quite know what to say.”

Fertility groups have said that regulating the industry could create additional burdens on patients and increase risks.

One of the three health centers that stopped IVF after the Supreme Court’s ruling – the Center for Reproductive Medicine in Mobile, which was the subject of the Supreme Court’s case – has not restarted IVF treatments despite the Legislature’s actions. It’s position on the matter remains the same as it did on March 6, according to a spokeswoman at Mobile Infirmary.

The Supreme Court’s ruling came in a wrongful death lawsuit brought by couples whose frozen embryos were destroyed in a 2020 accident at the health clinic. The court agreed with the couples that embryos were protected under Alabama’s Wrongful Death of a Minor Act.

The Supreme Court’s ruling has stirred a national debate that has put Republicans in an awkward position. But conservative think tanks like Heritage Foundation believe the timing is right to regulate the industry and, perhaps, limit the number of embryos preserved within a clinic at one time.

Emma Waters, religion, life, and bioethics associate with the Heritage Foundation, said the Alabama law gives blanket immunity to health providers and gives parents fewer rights to hold clinics accountable for their destroyed embryos.

“I think efforts that make the fertility industry less accountable and less regulated are a step in the wrong direction,” she said.

Democrats’ response

Democratic lawmakers believe for Alabama Republicans, the only recourse is to define personhood. They are pushing for the approval of HB225 – sponsored by Rep. Anthony Daniels of Huntsville – that would stipulate any fertilized egg or human embryo existing outside the uterus is not an unborn child under state law.

“There is still a lot of work to be done in the state of Alabama to ensure our families are protected and every person has suitable access to care,” said Daniels, a Democratic candidate for the 2nd congressional district seat. “SB157, the legislation to protect IVF still falls short as it does not codify into law or amend the Constitution to clarify a fundamental fact: that a fertilized embryo outside of a human uterus is not any form of person under law.”

Daniels has also pushed for legislation that guarantees access to traditional contraceptives like condoms and long-acting birth control and emergency contraception pills. During a news conference earlier this month, he warned that conservatives are “coming for everything, and our freedom, as we know it, is in jeopardy.”

“I want Alabama to be a state that provides a strong, safe environment for families to live and grow,” he said. “These poorly reasoned judicial rulings, combined with divisive right-wing culture war messaging and a refusal to pass legislation that would meaningfully improve the lives and health of every Alabamian demonstrate clearly that all of this is just a pro-birth agenda, not pro-life or a pro-woman agenda.”

But the fate of those bills is unknown at a time that Republicans enjoy supermajority status. Daniels said his pro-birth control bill remains in a committee, awaiting consideration.

Rep. Barbara Drummond, D-Mobile, said that Democratic lawmakers have not gotten any indication on when the Republicans – who enjoy supermajority status in the Legislature – want to resume discussions on IVF.

She said that Democratic lawmakers believe the issue will wind up in “some type of litigation.”

“I am certain my colleagues on the other side are looking at a more sustainable solution,” Drummond said. “When we look at the ruling from the state Supreme Court, it really put not only this issue but the abortion issue in a quandary on when life begins.”

She added, “I fully expect something forthcoming very soon. This issue is so crucial, and it has so many women and families in limbo.”

Political fallout

Whatever might emerge will surface amid a politically fraught landscape for Republicans on IVF and abortion rights, viewed as a top political liability for the GOP heading into November.

The IVF issue in Alabama is front and center for the Democratic Party’s 2024 strategy. Billboards are popping up attacking former President and GOP presidential hopeful Donald Trump on the issue. The Democratic National Committee has added signage in battleground states like neighboring Florida and Georgia, that read: “Banning Abortion, Stopping IVF. Is (each state) Next?”

“‘Conservative, pro-life lawmakers’ and their ‘pro-life votes’ are how this disaster began in the first place,” said Sheena Gamble, spokeswoman with the Alabama Democratic Party. “The strike down of Roe, the passing of Alabama’s near abortion ban, all culminates in this moment with IVF.”

The IVF fallout is also bringing the rare national spotlight to a state legislative race in Alabama.

A special election on Tuesday for the House District 10 seat is drawing national media attention because the Democratic challenger, Marilyn Lands, has made reproductive rights for women her top campaign issue. Her Republican opponent is Teddy Powell, a two-term Madison city councilman who is emphasizing local issues like infrastructure.

Lands, who told CNN that she plans to win the election, is running in one of the very few competitive state House or Senate districts in Alabama. It includes a portion of Madison, south and southwest portions of Huntsville, Triana, and encompasses Redstone Arsenal and the Huntsville International Airport.

Legislative fallout

The IVF issue born out of Alabama’s Supreme Court is also consuming state capitols this spring. According to the Guttmacher Institute, nine states including Alabama have introduced bills that either protect against legal prosecution or say that a fertilized egg or embryo outside a human body doesn’t count as a child. Alabama’s bill did not address fetal personhood.

The institute is also tracking 28 bills introduced in 16 states that can be broadly defined as addressing personhood under their state laws.

In Iowa, the state Senate put a halt earlier this month to legislation to increase penalties for terminating a person’s pregnancy without their consent out of concerns that it could endanger IVF access.

Timothy Hagle, a political science professor at the University of Iowa, said the activity in Alabama loomed over the Iowa bill.

“It seems to be one of those situations where an issue that might not have been considered now needed to be because of how it was raised in another area,” he said.