Republicans are learning that IVF is, to borrow from Joe Biden, a BFD. In the two weeks since the Alabama Supreme Court shockingly ruled that frozen embryos are children, polls show that the American people overwhelmingly disagree. A CBS News/YouGov survey found that 86% believe in vitro fertilization must remain legal.

In response to that overwhelming rebuke from the electorate, the GOP’s best and brightest are running away from their past positions on personhood. Donald Trump, who previously boasted “I was able to kill Roe v. Wade,” belatedly announced, “Under my leadership, the Republican Party will always support the creation of strong, thriving, healthy American families.” Self-proclaimed “New Moses” turned House Speaker Mike Johnson (R-LA) declared Thursday that Congress would not be taking up the issue of potentially banning IVF, despite his having previously sponsored the “Life at Conception Act” to do just that.

But overlooked in the Republicans’ gymnastic contortions to avoid the inescapable implications of their draconian abortion restrictions is a simple truth. Every GOP Platform in the 21^st century has called for a ‘Human Life” amendment to the U.S. constitution which would almost certainly ban all abortions and current IVF treatments.

As you may recall, in 2020 the Republican National Committee decided to punt altogether on creating a new GOP Platform for President Trump’s reelection. So, the 2020 “Human Life” plank, like the 2016 Republican Platform before it, proclaimed:

The Constitution's guarantee that no one can "be deprived of life, liberty or property" deliberately echoes the Declaration of Independence's proclamation that "all" are "endowed by their Creator" with the inalienable right to life. Accordingly, we assert the sanctity of human life and affirm that the unborn child has a fundamental right to life which cannot be infringed. We support a human life amendment to the Constitution and legislation to make clear that the Fourteenth Amendment's protections apply to children before birth. [Emphasis mine.]

The Republican call for a “Human Life Amendment” to the Constitution has been a constant in every GOP presidential campaign of the 21^st century. Whether the candidate was named Bush (twice), McCain, Romney or Trump, the demand has always been the same. Only the wording changed, as the 2000 RNC Platform from George W. Bush’s first White House run reveals:

As a country, we must keep our pledge to the first guarantee of the Declaration of Independence. That is why we say the unborn child has a fundamental individual right to life which cannot be infringed. We support a human life amendment to the Constitution and we endorse legislation to make clear that the Fourteenth Amendment's protections apply to unborn children. [Emphasis mine.]

There’s no mystery as to why the anti-abortion zealots of the Republican Party need this language inserted into the Constitution of the United States. For starters, in its very first sentence, Section 1 of the 14^th Amendment makes crystal clear that zygotes, embryos and fetuses are not citizens of the United States:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [Emphasis mine.]

Now, one could make the argument that subsequent uses of the term “person” in the Due Process and Equal Protection clauses could include the “unborn.” The Supreme Court has in several cases ruled that foreign nationals (sometimes including undocumented immigrants) in the United States are “persons” enjoying equal protection guarantees. It is worth noting that President Trump ran afoul of the Constitution’s requirements when he attempted to omit non-citizens from the 2020 Census.

In his concurring opinion in the Alabama frozen embryo case that ruled “Unborn children are ‘children’”, Chief Justice Tom Parker went much further in his concurring opinion. “Human life cannot be wrongfully destroyed without incurring the wrath of a holy God.” (That same God apparently has no qualms about the 15 to 25% of pregnancies which end in miscarriage.) But another wrathful judge, Justice Samuel Alito, refused to go that far--at least not yet. In his Dobbs majority opinion striking down 50 years of Supreme Court since Roe v. Wade, Alito cautioned that Court had not yet offered “any view about if and when prenatal life is entitled to any of the rights enjoyed after birth.”

That hasn’t stopped 2016 Republican White House hopefuls Marco Rubio and Mike Huckabee from claiming otherwise. While Rubio (R-FL) claimed such a law “already exists” and “is called the Constitution of the United States,” Governor Huckabee (R-AR) declared, “I think the next president ought to invoke the Fifth, and Fourteenth Amendments to the constitution now that we clearly know that that baby inside the mother's womb is a person at the moment of conception.” In the fall of 2017, President Trump’s Department of Health and Human Services (HHS) announced it was unilaterally rewriting the text of the 14^th Amendment:

HHS accomplishes its mission through programs and initiatives that cover a wide spectrum of activities, serving and protecting Americans at every stage of life, beginning at conception. [Emphasis mine.]

Whether or not the Roberts Supreme Court ultimately blesses the bizarre and baseless notion that the Constitution already has a “Fetal 14^th Amendment,” such a change remains one of the core planks of the Republican Party Platform. And that “Human Life Amendment,” the one that Republicans have been pushing since at least the time George W. Bush lamented that “too many OB-GYNs aren't able to practice their love with women,” would effectively ban in vitro fertilization treatments as currently performed in the United States. If extended nationwide Alabama’s notion of “extrauterine personhood” would end—de jure or de facto—assisted reproductive technologies due to criminal sanctions, civil liabilities or prohibitive costs. As Axios explained, IVF as now practiced inevitably involves the loss or destruction of embryos. In 2021, 202,000 embryo transfers were required to produce 86,000 live births. Why?

• Many of the embryos used in IVF are frozen, and first have to be thawed before getting transferred — a process that not all survive.
• Not all thawed embryos pass genetic testing and are considered to have high reproductive potential.
• Not all embryos of high reproductive potential successfully implant into the uterus.
• And not all embryos that implant lead to a healthy baby — pregnancy loss is possible.

In the face of the national backlash to its Supreme Court ruling, the Alabama legislature passed and Governor Kay Ivey signed a bill shielding doctors and clinics from liability for the destruction of frozen embryos. But while at least one clinic resumed embryo transfers, others have yet to proceed. As the New York Times reported Thursday:

But Infirmary Health and the Center for Reproductive Medicine, the clinic and doctors at the center of the wrongful-death lawsuit that prompted the court ruling, said in a statement Wednesday that they would wait for “legal clarification on the extent of immunity” in the new law.

“At this time, we believe the law falls short of addressing the fertilized eggs currently stored across the state and leaves challenges for physicians and fertility clinics trying to help deserving families have children of their own,” the statement said.

The new Alabama immunity law falls short, the AP explained, because Republican legislators there “shied away from proposals that would address the legal status of embryos created in IVF labs, action that some said would be needed to permanently settle the issue.”

Regardless, as Ruth Marcus noted, February’s ruling in Alabama means that “the Pandora’s box of fetal personhood has been opened.” But despite their denials, the leading lights of the Republican Party are responsible for unleashing those horrors on the American people. After all, they’ve been running on precisely that platform for decades.