Alabama’s LePage decision, the future of ex vivo embryos, and more

Abstract In February 2024 the Alabama Supreme Court held that the destruction of frozen embryos stored at an in vitro fertilization (IVF) center could be the basis of a wrongful death suit by the prospective parents under Alabama law. The opinion caused a bipartisan uproar that led to its effective overturning by the Alabama legislature and governor 19 days after it was issued. The Alabama Supreme Court’s unexpected intervention in IVF shows the surprising ways a mishap in a clinic can trigger a collision of originalist jurisprudence, judicial rhetoric, political mobilization, and media amplification in our post-Dobbs world. A closer look reminds us of how variable court systems and laws are across the USA, as well as the complex motivations of patients and others involved in assisted reproduction. It also shows how state court decisions, perhaps through intentional provocations, can reverberate in the national debate, leading to overreactions, some far beyond their jurisdictions’ borders. Plus, in context, beyond the online quips, the political soundbites, and the media articles, it is a fascinating tale and all of that from a case that could easily have been decided, in either direction, as a low-key interpretation of a unique Alabama statute, without broad consequences.