State Court Report: How the Alabama IVF ruling is and isn’t about Dobbs

The Alabama Supreme Court’s recent ruling that frozen embryos are “persons” subject to the state’s wrongful death statute has become a major national story, with in vitro fertilization (IVF) services across the state now paused in response to fears about new legal risks. LePage v. Center for Reproductive Medicine has brought the growing movement to establish fetal personhood rights into full focus. It’s a tremendously consequential ruling that’s about a lot of things, but I’m going to focus on the ways it is — and is not — about the U.S. Supreme Court, because a lot of the coverage to date has been confusing. Importantly, the Court’s 2022 Dobbs decision, which overturned Roe v. Wade and eliminated abortion rights under the Constitution, is a big part of the story, but not exactly in the way many have suggested.

In LePage, the Alabama court ruled that the state’s wrongful death statute, which provides a basis for parents of a child who has died to recover punitive damages in civil litigation, applies to “extrauterine children.” The plaintiffs were IVF patients who had left frozen embryos in the care of a fertility clinic. When a hospital patient wandered into the clinic’s cryogenic nursery and destroyed the embryos, the patients sued under several legal theories, including wrongful death.

Notably, the Alabama court wasn’t starting with a blank slate — it had been developing fetal personhood rights under state law even when Roe was still on the books. Back in 2011, the court had ruled that the state’s wrongful death statute applies to an “unborn child,” regardless of viability. The court characterized the issue before it now as whether there is “an unwritten exception” to that rule when an unborn child is “not physically located ‘in utero.’” It concluded that nothing in the law “narrowed” its otherwise sweeping application — in other words, that frozen embryos should be treated no differently than other “unborn children.”

The court also leaned heavily on a 2018 amendment to the Alabama Constitution, which established that “it is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate.” (The Arkansas Constitution has an amendment with similar language.) The court treated this policy statement as a “constitutionally imposed canon of construction” — meaning that any ambiguous statute should be interpreted to treat the rights of “unborn children” equally to those of “born children.” (Among other things, this opens the door to applying other Alabama legal protections to frozen embryos as well.)

While the majority opinion focuses on statutory interpretation, in a concurrence, the chief justice raised the possibility that the outcome was itself constitutionally mandated and that the Alabama Constitution might require other limits on IVF as well. It’s quite a read. The amendment, the chief justice argued, adopts a “theologically based view of the sanctity of life,” including that “life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself.” What does this mean in practice? That “any legislative (or executive) act that contravenes the sanctity of unborn life is potentially subject to a constitutional challenge under the Alabama Constitution.”

As we consider LePage’s implications, something that’s gotten lost in a lot of coverage is that Alabama didn’t need Dobbs to give fetal personhood status under its laws, or to apply that personhood status to frozen embryos under its wrongful death statute. LePage is an extension of fetal personhood protections that have existed and been enforced in Alabama (and many other states) for years, including via criminal law — part of a long-term campaign by abortion opponents. Applying a wrongful death statute to frozen embryos is unprecedented, but it’s not newly permitted due to changes in federal abortion law, even if courts may be newly emboldened. Rather, even before Dobbs, a lot of what we might think of as reproductive rights have actually been functions of state law. In that sense, LePage is part of a long tradition.

That doesn’t mean, of course, that Dobbs isn’t also part of the story. Dobbs was cited three times by the LePage majority, including for the claim that “the unborn were widely recognized as living persons with rights and interests” in the 19th century. It’s almost certainly the case that the Alabama court saw itself in conversation with the U.S. Supreme Court’s abortion jurisprudence.

In Dobbs, the U.S. Supreme Court declined to express “any view about if and when prenatal life is entitled to any of the rights enjoyed after birth.” That’s a gaping jurisprudential hole with the potential to justify federal constitutional abortion limits or even bans. And it’s likely to be seen by conservative state courts as an invitation to start developing fetal personhood jurisprudence — both in and out of the abortion context — with an eye to ultimately shaping the development of federal constitutional law. (This is what University of Pittsburgh Vice Dean Jerry Dickinson called “judicial federalization” in a recent piece.)

The widespread backlash to the Alabama decision may make other courts hesitant to follow in its footnotes on IVF, and Alabama may ultimately change its laws (or even further amend its constitution) to limit the scope of the court’s ruling. But in the post-Dobbs landscape, fetal personhood claims are almost certain to take on new prominence.

In Arizona, Considering Forced Condo Sales and the Takings Clause

An Arizona couple is asking the state supreme court to block the forced sale of their home, which occurred after an investment firm took over their condominium association and activated a sales clause in their contract. Even though forced sales often feel unseemly, Harvard Law School professor Maureen Brady writes, “whether the takings clause is the right vehicle for challenging them is another matter.” READ MORE

State Courts Shouldn’t Follow SCOTUS in Limiting Damages for Constitutional Violations

“When the patchwork of Supreme Court decisions is fashioned into a single quilt, the innocent citizen who has suffered harm from the trammeling of their federal constitutional rights often is left remediless,” writes Gary S. Gildin, a professor and the director of the Center for Public Interest Law and Advocacy at Penn State’s Dickinson Law. State courts should lean more toward protecting liberty and decline to follow Supreme Court decisions that limit damages for violations of federal constitutional rights, Gildin argues. READ MORE

A Win for Defendants, but New York’s Discovery Laws Still Cause Confusion

New York’s high court recently ruled that a defendant’s “speedy trial” rights under the state’s reformed discovery laws were violated when a prosecutor failed to turn over a 911 recording and police paperwork until shortly before trial. The ruling, which dismissed the case, is being touted as a win for those facing trial, the Brennan Center’s Brianna Seid writes, but because the court made clear dismissal is not required for every belated disclosure, questions remain even after the unanimous opinion. READ MORE

Pennsylvania Revitalizes Its State ERA

Pennsylvania’s high court has held that the state’s ban on Medicaid coverage for abortion care is reviewable under the Pennsylvania Equal Rights Amendment (ERA) as a form of sex discrimination. The case could provide momentum to tie reproductive rights to sex equality rights in other states with ERAs, argues Ting Ting Cheng, director of Columbia Law School’s Equal Rights Amendment Project. “This decision proves that reproductive rights have a future post-Dobbs — one firmly rooted in state-level ERAs and their untapped potential to protect and advance reproductive rights,” she argues. READ MORE

North Carolina High Court Set to Backtrack on School Funding

Litigation over the baseline standard of education required by the North Carolina Constitution and how it must be funded has wound up and down state courts for decades. Last week, the state supreme court, with a new conservative majority, heard arguments in the litigation for the fifth time. “This time, state legislators are asking the court to back away from a decision it made less than 15 months ago,” the Brennan Center’s Erin Geiger Smith writes. The case shines a spotlight on the increased politicization of judicial elections. READ MORE

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In Conversation About Colorado’s Constitution

Last fall in Denver, State Court Report and the University of Colorado School of Public Affairs hosted a conversation with Colorado Supreme Court Justice Melissa Hart, Sturm College of Law Professor Tom Romero, and State Court Report Editor in Chief Alicia Bannon. Moderated by Colorado Public Radio’s Chandra Thomas Whitfield, the group discussed how Coloradans have used their constitution to expand rights beyond those offered in the U.S. Constitution, and the resulting successes and challenges. READ THE TRANSCRIPT

Notable Cases

Owens v. People, Colorado Supreme Court
Upheld a conviction in a high-profile state murder case, where the defendant, Sir Mario Owens, appealed based on many alleged errors, including racial bias in jury selection. The defendant was initially sentenced to death, but Colorado abolished the death penalty in 2020. // Colorado Politics

Faatz v. Ashcroft, Missouri Supreme Court
Affirmed an appeals court ruling that the Missouri Senate redistricting plan met constitutional requirements. The maps were drawn by a judicial commission after a bipartisan citizens’ commission could not agree on a plan. Challengers to the maps were citizens who lived in two different counties that the redistricting plan split. They argued that the splits violated the community preservation requirement of the Missouri Constitution. // Missouri Independent

Smith v. Iowa District Court for Polk County, Iowa Supreme Court
Held that the Iowa Constitution protects legislators from being forced to produce documents related to the legislative process. The legislative privilege includes communications with third parties when they relate “directly to the legislative process of considering and enacting legislation.” // KCCI 8 Des Moines

You can find briefs and opinions from notable state constitutional lawsuits in our State Case Database.