In Limbo Fertilization

The Alabama Supreme Court’s ruling on embryonic life has unleashed the worst parade of horribles this side of the speaker’s stage at CPAC.

The facts are bizarre. A patient wandered into a room at an Alabama fertility clinic where frozen embryos were being stored, grabbed a few, then dropped them onto the floor when the intense cold burned her hand, destroying them. The couples to whom those embryos belonged sued the clinic under the state’s Wrongful Death of a Minor Act. The question for the court: Were the embryos “minors” within the meaning of that statute?

The answer: Yes indeed. “Extrauterine children” are children. A provision in the Alabama Constitution makes clear that “it is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.” That was enough for the court to err on the side of assuming personhood in the embryos, with the chief justice going so far as to say in his concurrence that “life cannot be wrongfully destroyed without incurring the wrath of a holy God.”

Clinics in Alabama that practice in vitro fertilization immediately began suspending operations, terrified of the legal jeopardy they might soon face by conducting business as usual. That’s because IVF treatments typically involve the creation of multiple embryos, only one or two of which will actually be used. Some might be deemed unfit—and discarded—because of genetic abnormalities or difficulties in implanting them successfully. Healthy extraneous embryos might be held in reserve for a future pregnancy. In some cases, embryos are donated to other couples or for scientific research.

If those surplus embryos are now children under the law, is destroying them … murder? Probably not: Alabama’s murder statute limits its definition of a “person” to an “unborn child in utero.” But it’s anyone’s guess what sort of civil liability a clinic that destroys a fertilized egg might have going forward.

So it came to be that a ruling vindicating the sanctity of life at the earliest stage of development has momentarily deprived many hopeful couples in Alabama of having children of their own.

It’s a personal nightmare for them and a political nightmare for the Republican Party, which dominates Alabama. Democratic alarmism about a pro-life plot to limit reproductive freedom in all its forms suddenly seems not so alarmist. The GOP’s project to reassure voters that ending the constitutional right to abortion won’t mean ending less controversial rights, like access to contraception, has derailed.

And it’s not clear what it can do to get back on track.

There are many absurdities to the Trump-era GOP (again, I refer you to the speaker’s lineup at CPAC) but none more absurd than this: The great political hope of some social conservatives, the man sent to rescue America from the enemies of Christianity, is a Manhattan playboy whose own personal life is so dissolute that he once called the risk of contracting an STD his “personal Vietnam.”

He’s made the absurdity work for him, though.

Charismatic politicians have a knack for making themselves all things to all people and Trump is no different. On the one hand, his conspicuous lack of Bible-thumping in 2016 set him apart from the rest of the GOP field, attracting new voters who weren’t religious themselves. These were the so-called “Barstool conservatives” who sided with the right in blue-collar cultural disputes over immigration and “wokeness” but disdained the Christian moralizing of traditional Republicans. Trump was their guy.

But he’s somehow this guy too:

Donald J. Trump: Answering to God since 1946.

Trump himself has plainly never cared much for culture war on matters of sex and reproduction for obvious reasons, but he’s enough of a pragmatist to have realized that certain concessions would need to be made to Christian conservatives if they were ever to accept him as their leader. So he made the promise Republican presidents have made since the early 1970s: to fill the Supreme Court with enough conservatives to finally end constitutional protections for abortion. And unlike his predecessors, he kept that promise.

I think he assumed that that would be that. With Roe gone, Christians would be satisfied and the thorny politics of reproductive rights would return to the states. He could leave all of it behind and focus on the issues that truly put a spring in his step, like building detention camps.

But that was not, in fact, that. Only someone very naive about politics could have believed that courts and legislatures newly empowered to regulate abortion wouldn’t create numerous policy and political conundrums for the GOP’s national leadership. After the Alabama ruling, Semafor pressed the Trump campaign for its position on some of those conundrums—a federal abortion ban, possible exceptions to that ban, public access to abortifacients, the status of the Comstock Act, and litmus tests for future judicial appointees. The campaign had nothing to say about any of them.

Caught between Christian pro-lifers, Barstool conservatives, and swing voters, Trump plainly has no firm idea of how to thread the needle politically on any of it. I suspect he’d prefer not to think about such things at all for the rest of the campaign even though the end of Roe has granted him and his party more power to regulate reproductive behavior than it’s had in 50 years.

Other Republicans are also struggling with the Alabama case. Take Nikki Haley, the sensible “moderate” in the Republican presidential race who’s been cagey about abortion in hopes of finding a sweet spot with voters. When she was asked about the ruling on Wednesday, she seemed to agree with it. “Embryos, to me, are babies,” she told NBC News. “When you talk about an embryo, you are talking about, to me, that’s a life. And so I do see where that’s coming from when they talk about that.”

Exactly one day later, amid a ferocious uproar about the implications of the decision, she told CNN that Alabama’s legislature needs to go back and “look at” the law on which the ruling was based. You can picture the gears turning in her head: Which position is more pro-life? The one that grants embryos the status of children, affirms that life begins at the moment of conception, and ultimately seeks to prevent the destruction of that life? Or the one that reduces impediments to IVF, making it easier to bring children into the world?

And if the answer is that the first one is more pro-life, is it nonetheless political suicide to take that position, knowing how popular IVF is with most voters? Or is it political suicide not to take that position, knowing that the sort of hardline pro-life Republican voter who thinks embryonic life is protected by the 14th Amendment might react badly?

Even one of Alabama’s own senators isn’t sure what to make of all of it, although in his case that may be less a matter of political cowardice than earnest idiocy.

I wonder if the Trump-era GOP is destined to struggle with all policy issues that can’t easily be assimilated into left-right culture-war tribalism. That might explain why so many Senate Republicans surrendered to the base instantly by rejecting James Lankford’s immigration compromise but defied them by voting for another round of military aid to Ukraine. Certainly there are some right-wingers who view Ukraine as a front in the culture war—hi, Tucker!—but that number is far less than the number who think Democrats’ immigration policy is a plot to tilt the racial demographics of the United States in their electoral favor.

There’s no “tribal” take on IVF for Republican leaders to fall back on when something like the Alabama ruling happens. No wonder they’re at sea trying to figure out how to talk about it.

There’s another tension on the right that’s complicating the party’s effort to find a way forward post-Roe, though.

I offer you two tweets. The first involves culture warrior extraordinaire Christopher Rufo, known to the right for his work in exposing progressive racial politics on American campuses but now seemingly eager to, er, branch out:

The second involves Rep. Matt Gaetz, a man allegedly quite comfortable with “recreational sex.”

Rufo and Gaetz are strange bedfellows (no pun intended), representatives of two factions of the New Right coalition that aren’t just different but fundamentally opposed. Gaetz is essentially a Barstool conservative, anti-left but unconcerned with policing sexual morality to better society.

To put it mildly.

The Rufo faction, on the other hand, is earnest about social engineering. Cleansing universities of “wokeness” isn’t the end of the faction’s project, it’s the beginning. Adherents are revolutionaries, and like all revolutionaries they’re keen to remake society broadly in their image. When the left warns of right-wingers eager to further limit reproductive rights post-Roe to raise the cost of recreational sex (such as through more regulation of birth control, for example), this is who they’re talking about.

The curious thing about a New Right led by Donald Trump is that it’s anyone’s guess which faction will prevail.

There’d be no guessing in a party with strong ideological leadership at the top. Whether recreational sex deserves as much respect politically as procreational sex would be clear from Trump’s political vision. But while there’s no question what his personal preference on that subject is, his political program lacks the same clarity. We all know where he stands on issues that he cares about, like immigration. On issues that he doesn’t, like abortion or IVF, one suspects he’s open—maybe too open—to suggestion.

As such, it’s easy to imagine him handing off the issue to a team of radicalized aides who are passionate about the topic and letting them run wild. “The idea seems to be that Trump is so uninterested in the technical details of abortion-related matters that he’ll rely on [a] trusty orbit of advisers to shape policy,” The Atlantic reported recently, citing a playbook that the Heritage Foundation is writing for his second term. Among the initiatives that playbook endorses are “criminal prosecution of those who send or receive abortion supplies under the Comstock Act” and rescinding FDA approval of abortifacients like mifepristone.

Other Trump hangers-on go further than Heritage. Politico recently reviewed documents prepared by the Center for Renewing America, a think tank led by top Trump crony Russell Vought. One lists “Christian nationalism” explicitly as a priority for a second term; another encourages Trump to mobilize the U.S. military under the Insurrection Act to put down protests.

These people are honest fanatics, as serious as a heart attack. There’s every reason to believe they might prevail upon Trump and drive his agenda. The wrinkle is that … there’s also reason to believe they won’t. His whims change day-by-day or hour-by-hour depending upon who’s in his ear. His grasp of policy intricacies is, shall we say, gentle in the best of circumstances. And he’s justifiably sensitive to the risk of a major backlash, possibly to include Barstool types like Gaetz on the right, if he aligns himself too closely with the sex police.

The procreators and the recreators can’t be reconciled. The Rufo faction will want more policy initiatives to try to shape reproductive behavior and the Barstool faction plus whatever normies remain in this insane party will chafe at it. How confident should we feel about predicting what Trump will do after congressional Republicans spent the winter reassuring reporters that the party won’t back a federal abortion ban—only to have their leader turn around and start teasing a 16-week ban recently in private conversations?

Perhaps God will laugh—and a man who was once on the cover of Playboy will become the vessel for hardcore social conservatives to try to blunt-force their way on policy back to a 1950s-era morality in America. (Seeing Matt Gaetz hauled off to prison on a morals charge would be a small consolation.) Or maybe Trump will hand-wave away the Voughts and Rufos, annoyed that their dogmatism about sex might divert political energy away from his plans to round up reporters or whatever.

Either outcome seems possible in a party whose voters take most of their cues on policy from Trump himself. A cult of personality is like a box of chocolates: You never know what you’re going to get.

As of this afternoon, we do know what we’re going to get from the GOP on the Alabama IVF ruling. While I was writing this newsletter, the leader came down from the mountain and spoke:

Republican candidates for Senate have also been advised to speak out forcefully in support of IVF, never mind that treating embryos as children flows directly from traditional conservative thinking about life beginning at conception. Denying hopeful couples the ability to have a child through technology would be so cruel that the party could never effectively spin it away, so it won’t bother trying.

Besides, what are pro-life groups going to do in protest? Boycott the election? Don’t make me laugh.

It’s sensible for Trump and his party to land on the pro-IVF position in the Alabama controversy. The question is whether it’s already too late.

As one Dispatch colleague pointed out today, even if the Alabama legislature hastily amends state law to carve out an exception for IVF from the Wrongful Death of a Minor Act, only a fraction of voters nationally who’ve been horrified by this episode will hear about it. Those who do hear about any such amendment might nonetheless treat it as proof that Democrats were right all along about the ambitions of the GOP agenda. Sure, IVF might be popular enough to have forced a rapid right-wing retreat this time, but what happens when some conservative court bans a more contentious practice, like sending abortifacients through the mail?

Or what happens when Trump returns to office and appoints some Rufo-type to the next vacancy on the U.S. Supreme Court? A ruling from SCOTUS banning contraception, say, might not be overturned as easily as the Alabama ruling, either because it involves an interpretation of the U.S. Constitution or because Congress can’t muster a bipartisan consensus to overturn the court’s interpretation of a federal statute.

For many voters, the lesson from the Alabama case will be this simple: Pro-choicers warned that overturning Roe would open Pandora’s box. Republicans did it anyway and now they own all the woes that have emerged. Nothing would be funnier than watching a man as louche and amoral as Donald Trump lose in November because he indulged his base too much in promoting sexual rectitude. Perhaps God will laugh.