Why Alabama’s Abortion Law Includes an Exemption for Infertility

(Bloomberg Businessweek) -- Alabama’s new blanket ban on abortion “protects the sanctity of unborn life,” with one curious exception: The law deems only fertilized eggs inside a womb worthy of protection, not ones routinely destroyed in the process of fertility treatment.

“The egg in the lab doesn’t apply,” Clyde Chambliss, state senator and sponsor of the abortion bill, said during the Alabama legislative debate. “It’s not in a woman. She’s not pregnant.”

The fertility industry didn’t support the Alabama bill, nor did it lobby for an exemption, says Sean Tipton, spokesman for the Birmingham-based American Society for Reproductive Medicine. It didn’t need to, he says: Politicians recognized that the popularity of fertility treatments was preventing anti-abortion laws from passing.

A 2011 attempt to amend the state constitution of Mississippi so that a fertilized egg would have the same rights as a full person shocked abortion foes “where they fully expected to win,” Tipton says. A statement released by Personhood Mississippi at the time blamed Planned Parenthood for the measure’s defeat and for “misleading” voters about its impact on in vitro fertilization. Similar so-called personhood amendments were subsequently rejected in Colorado, North Dakota, and other states. The Alabama lawmakers “recognized how potent opposition from the infertility community was and sought to avoid it,” he says.

IVF treatment involves the creation of embryos in a laboratory setting; those deemed most viable are typically implanted in a woman’s uterus, while others are either frozen for later implantation, donated, or discarded. The use of what the fertility industry terms “assisted reproductive technology” has doubled over the past decade, according to the federal Centers for Disease Control and Prevention. In the U.S. last year, in vitro fertilization generated about $2 billion in revenue, excluding the cost of pretreatment drugs, which bring in an estimated $8 billion a year.

The Alabama law is the first to make abortion illegal from conception on, with exceptions only in cases of serious health risks or death for the mother. It makes performing an abortion a felony punishable by up to 99 years in prison and includes no exception for victims of incest or rape. Signed by Governor Kay Ivey on May 15, it’s one of numerous state anti-abortion measures designed to provoke a showdown at the U.S. Supreme Court. Other states, including Georgia, Ohio, and Missouri, have reduced the time limit for abortions, making them illegal after six to eight weeks.

Governor Ivey’s office referred questions on the law to state Representative Terri Collins, one of the bill’s top sponsors along with Chambliss. Collins didn’t return calls or emails requesting comment on the law’s exemption for fertility labs. Neither did Alliance for a Pro-Life Alabama. Chambliss’s office sent an automatic reply saying: “Due to the volume of contacts that I receive, I am not able to respond to each, but I did want you to know that I read every email.”

Alabama’s anti-abortion leaders paved the way for this month’s law with an amendment to the state’s constitution declaring the “sanctity of unborn life” that passed in November. Framing that measure in religious language in a state where nearly half of all adults consider themselves “evangelical Protestant” meant that little money needed to be spent on ads, lobbying, or campaign contributions. Meanwhile, Planned Parenthood alone spent $1.3 million to fight the amendment, dwarfing the less than $8,000 spent by backers, according to Ballotpedia.

The law is set to go into effect in December, pending the result of legal challenges. Planned Parenthood and the Alabama Women’s Center sued on May 24 to stop it.

In the weeks since Ivey signed it, even some Republicans have expressed unease that the law’s breadth may make it difficult to defend; these include the 700 Club Christian television ministry’s Pat Robertson and President Donald Trump. And while the U.S. Conference of Catholic Bishops has called the new spate of anti-abortion laws in Alabama and elsewhere a good first step, the church opposes the destruction of embryos during in vitro fertilization, calling it “a terrible offense against human life.”

Abortion-rights advocates call the exemption both outrageous and cynical. “When I heard Chambliss say it was for embryos in the woman’s uterus, it really highlighted what this is really about,” says Barbara Ann Luttrell, spokeswoman for Planned Parenthood Southeast. “It’s not about the embryo.”

Infertility patients are more sympathetic to many voters than women seeking abortions. On average, they pay from $12,000 to $17,000 for each egg fertilization and implantation procedure. Even if the process is successful, it often takes several treatments to conceive a child. Insurance plans that offer infertility coverage often pay only a portion of the costs.

Gualberto Garcia Jones, head of the Washington, D.C.-based Personhood Alliance, says the Alabama law’s language doesn’t bother him because the destruction of fertilized eggs in labs isn’t expressly permitted. But he doesn’t support the Alabama law, he says, because it could be too easy to get an abortion based on the mother’s health issues.

Legislators backing personhood bills have taken to inserting IVF exemptions, says Tipton, the representative from the Society for Reproductive Medicine. He calls this “a nice gesture” but says it’s often meaningless. A recent South Carolina bill includes a preamble that says it isn’t about fertilization clinics, but the legislation would make it impossible to freeze embryos, he says, a fundamental part of infertility therapy.

Tipton isn’t happy about the Alabama law, either. Just because it doesn’t affect the infertility community’s work, he says, “that doesn’t mean we like it.”

To contact the editor responsible for this story: Anita Sharpe at asharpe6@bloomberg.net, Jillian GoodmanFlynn McRoberts

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