Fact Check: Biden Blames Supreme Court’s Dobbs Decision for Alabama IVF Case at SOTU

CLAIM: President Joe Biden claimed during his 2024 State of the Union address on Thursday evening that the Supreme Court’s Dobbs decision overturning Roe v. Wade enabled the Alabama Supreme Court to rule that frozen embryos created during the in vitro fertilization (IVF) process are unborn children.

VERDICT: PARTLY FALSE — The Alabama Supreme Court’s Feb. 16 decision was not directly dictated by the Dobbs decision, which returned the issue of abortion to individual states.

With Supreme Court justices in attendance, Biden slammed the high court during his State of the Union speech and claimed that the Alabama IVF case was “unleashed by the Supreme Court decision overturning Roe v. Wade,” which for 50 years had guaranteed an invented Constitutional “right” to abortion.

“Joining us tonight is Latorya Beasley, a social worker from Birmingham, Alabama. Fourteen months ago tonight, she and her husband welcomed a baby girl thanks to the miracle of IVF,” Biden said. “She scheduled treatments to have a second child, but the Alabama Supreme Court shut down IVF treatments across the state, unleashed by the Supreme Court decision overturning Roe v. Wade. She was told her dream would have to wait.”

“What her family has gone through should never have happened. And unless Congress acts, it could happen again. So tonight, let’s stand up for families like hers!” he continued. “To my friends across the aisle, don’t keep families waiting any longer. Guarantee the right to IVF nationwide!”

While the Alabama Supreme Court cited the Dobbs ruling repeatedly in its decision, it did so for basic legal principles. For example, justices cited part of the Dobbs decision that states, “respect for a legislature’s judgment applies even when the laws at issue concern matters of great social significance and moral substance.” The court did not use to Dobbs decision to change laws or judicial precedents involving IVF.

Even under Roe, states could regulate and restrict abortion. The basic test under Planned Parenthood v. Casey, which modified Roe, was that a state could not impose an “undue burden” on women seeking abortion. Some restrictions were upheld, others were not.

And Dobbs was about abortion, not IVF, so while cases like Roe and Dobbs are certainly relevant to IVF, states still had all sorts of flexibility on IVF before Dobbs, and just have more flexibility after Dobbs.

For example, states could probably still prevent embryo destruction under Roe and before Dobbs, because a frozen embryo is not a “pregnancy,” and Roe and Casey were about the right to end an unwanted pregnancy, not the right to destroy embryos. It is very possible that the courts would rule that imposing financial liability for destroying an embryo in a laboratory is not an “undue burden” on someone seeking to abort a pregnancy, though a court might feel compelled to declare that in doing so it was not protecting the embryo as a “person” and so the financial penalty was not for “wrongful death.”

For example, the law protects against the destruction of embryos of various non- humans such as certain endangered species, none of which are the “wrongful death” of a human being and are completely separate from the right of a woman to obtain an abortion. Punitive damages can be imposed for all sorts of legal violations, and laws could impose such liability for destroying non-human life, and even acts that do not involve the destruction of any form of life.

While Dobbs thus made it easier for the Alabama court to issue the decision it did of imposing financial liability, and was key to making it possible to impose liability under the theory that the destruction was the “wrongful death” of a human child, it is untrue to say that the outcome of upholding financial liability for destroying embryos was impossible under Roe, and also untrue to give the impression that the Alabama decision was the inevitable result of overruling Roe. The dissent in the
Alabama decision is an example of how judges could reach contrary conclusions.

The Alabama Supreme Court also did not shut down IVF, as Biden suggested, although at least three clinics reportedly paused offering IVF following the court’s ruling that anyone who destroys a frozen embryo may be held liable under the state’s Wrongful Death of a Minor Act — a law that has historically applied to born and unborn children.

The Alabama Supreme Court case is centered on whether the Center for Reproductive Medicine can be held liable under the Wrongful Death of a Minor Act after a patient accessed, dropped, and destroyed the frozen embryos of several couples in 2020. The embryos were created via IVF, in which “mature eggs are collected from ovaries and fertilized by sperm in a lab, [and] then a procedure is done to place one or more of the fertilized eggs, called embryos, in a uterus, which is where babies develop,” according to the Mayo Clinic.

The state’s high court ultimately reversed a lower court ruling that did not recognize frozen embryos as unborn children. The Alabama Supreme Court based its reasoning on the Sanctity of Unborn Life Amendment adopted to the state Constitution in 2018, which declared it “public policy” to recognize “the sanctity of unborn life and the rights of unborn children.”

“This Court has long held that unborn children are ‘children’ for purposes of Alabama’s Wrongful Death of a Minor Act, a statute that allows parents of a deceased child to recover punitive damages for their child’s death,” the opinion reads.

“The central question presented in these consolidated appeals, which involve the death of embryos kept in a cryogenic nursery, is whether the Act contains an unwritten exception to that rule for extrauterine children — that is, unborn children who are located outside of a biological uterus at the time they are killed,” the justices continued. “Under existing black-letter law, the answer to that question is no: the Wrongful Death of a Minor Act applies to all unborn children, regardless of their location.”

The justices noted the text of the Wrongful Death of a Minor Act is “sweeping and unqualified.”

“It applies to all children, born and unborn, without limitation,” they wrote. “It is not the role of this Court to craft a new limitation based on our own view of what is or is not wise public policy. That is especially true where, as here, the People of this State have adopted a Constitutional amendment directly aimed at stopping courts from excluding ‘unborn life’ from legal protection.”

Ahead of the State of the Union, Alabama Gov. Kay Ivey (R) signed a bill providing civil and criminal immunity to IVF clinics for death or damage to embryos, now defined as human beings under the state’s wrongful death statute.

Federally, Senate Democrats tried to fast track a trojan horse bill last week that would have installed federal protections, not just for in vitro fertilization (IVF) but for all “assisted reproductive technology” as defined by the federal government. Sen. Cindy Hyde-Smith (R-MS) blocked the move, noting that the bill represented “a vast overreach … full of poison pills that go way too far — far beyond ensuring legal access to IVF.”

Editor’s Note: This story has been updated to reflect more specifically the impact of the Dobb’s decision and its role in the Alabama Supreme Court’s rule that IVF-created frozen embryos are unborn children.