(CN) — Republican leaders of the Alabama Legislature filed a bill Tuesday to temporarily protect in vitro fertilization procedures in the state while lawmakers consider a permanent, constitutional fix — even as U.S. Secretary of Health and Human Services Xavier Becerra visited families and physicians in Birmingham stung by a ruling on the procedure.
On Feb. 16, ruling in the appeal of a lawsuit in which the patients of a fertility clinic sought liability for the negligent destruction of their embryos, the Alabama Supreme Court concluded “unborn children are ‘children’ under [state law], without exception based on developmental stage, physical location, or any other ancillary characteristics.” The ruling exposed IVF providers to previously barred medical malpractice lawsuits and within days, at least three of the state’s eight IVF providers announced they were suspending operations.
Tuesday’s bill — sponsored by five Republican state senators — would “provide civil and criminal immunity to persons providing goods and services related to in vitro fertilization,” except for intentionally bad acts. It would override the court’s ruling if passed, but crucially would automatically repeal on April 1, 2025.
In public comments about the bill Monday, state Senator Tim Melson, a physician and chairman of the Senate Healthcare Committee, said it was his intention to introduce a permanent fix without the need for a constitutional amendment and corresponding ballot referendum. But the bill’s sunset date indicated any long-term relief would have to come from Alabama voters.
Alongside Secretary Becerra in Birmingham on Tuesday, Dr. Jared Robins, CEO of the American Society for Reproductive Medicine, indicated providers would not likely return to the state without a permanent solution. The Alabama attorney general has since announced he would not prosecute related IVF cases, but Robins said the action does little to give providers the legal protection they need to operate.
“This has been a really profound ruling,” Robins said. “IVF is an inefficient process, as not every embryo is going to wind up a live birth. The embryo doesn’t take 50% of the time, so the fear is those scenarios may be considered a liability, that it may be the wrongful death of a minor because that embryo did not survive.”
Robins and Becerra sat among seven IVF patients — some workers in the medical field — who shared their own stories about being affected by the court ruling.
Julie Cohen has 4-year-old twins who were conceived through IVF, after she endured “years and years of medical procedures” that failed. Her experience led her to work for a fertility nonprofit, where she has noticed the despair many IVF patients feel as hope for pregnancy builds and is often dashed. Cohen still has embryos in storage in Alabama and isn't sure whether she will have access to them in light of the ruling.
“In a personal and professional context, I am terrified that IVF is postponed in Alabama,” she. “Every embryo is a chance at a living baby and this recent ruling is taking that chance away from us.”
Similarly, Latoria Beasley discovered she couldn't get pregnant after her marriage. After two years of treatments, IVF helped the couple conceive their first child, but they were in the process of planning for a second child when the ruling was handed down. Beasley described the feeling of a “gut punch” when her provider canceled her appointment just before hundreds of dollars worth of now-worthless hormone medication was delivered to her house.
Beasley said it’s not feasible for her to seek treatment in another state, plus there is no guarantee there will not be similar judicial rulings elsewhere.
“I was hopeful we could go forward but now I don’t know,” Beasley said. “Right now it’s just hurtful.”
Becerra reserved his own comments for the end of the roundtable, when he suggested the ruling was another consequence of the U.S. Supreme Court striking down Roe v. Wade in 2022.
“Roe was so important because it establishes the constitutional structure that protects health care access,” Becerra said. “Roe would not have permitted this to occur but the moment we broke away from that constitutional access, the states were left to do as they wish.”
Becerra said Congress “could reinstate some protections” under Roe to ensure the nationwide availability of IVF, but it’s more likely the issue will be decided by each state.
Back in Montgomery, the state Senate adjourned Tuesday afternoon without introducing the bill. Legislators are expected to return to the chamber Feb. 28 at 3 p.m.
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