Opinion | The Pro-Life Movement Had a Plan Post-Roe. The G.O.P. Didn’t.

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There’s Michelle. Can you hear us?

(ALTERED VOICE) Is it not working in here either?

Oh. What was that?

(ALTERED VOICE) I sound like a demon from hell.

Guys, I think you’re going to be glad to have some Catholics on this episode. Just putting it out there.

From New York Times Opinion, I’m Lydia Polgreen.

I’m Michelle Cottle.

I’m Ross Douthat.

I’m Carlos Lozada.

And this is “Matter of Opinion.”

All right, guys. So I wanted to talk about where the debate over abortion is going. And I want to talk about it in light of a recent decision by Alabama’s Supreme Court, which ruled that frozen embryos should be considered children and that the destruction of frozen embryos can amount to the wrongful death of a human being. This decision obviously is coming at a very politically potent moment.

Since the Supreme Court overturned Roe v. Wade, fights over abortion have upended a lot of our fixed ideas about politics. It played havoc with the midterms in 2022. And now, it seems as though other areas of reproductive health care are up for grabs, just in time for the 2024 election.

But before we go to where the debate is headed, this ruling took me really by surprise. I wasn’t expecting it. And so I’m curious, did you guys have any personal reactions to hearing it? And were you surprised?

Uh, yeah. Often with significant cases that are going to generate either big public controversy or potential big policy impacts, we hear about them, sometimes months ahead of time. This came like a lightning bolt. But you’ve been hearing a lot of warnings that post-Dobbs, things like IVF could potentially be at risk. So there’s also some kind of I-told-you-isms going around, but not with me. This was very surprising.

So I, like Carlos, had not had forewarning that this was in the pipeline. I just had missed it somehow. But what actually happened does not surprise me.

I’m never surprised by anything, so yeah.

No, I mean, I think I was not familiar with all of the details of the specific Alabama laws that were interpreted in this case. And so I won’t pretend to have had for knowledge in that sense. But having some kind of IVF flashpoint in the abortion debate, I think, was pretty much inevitable.

Yeah. Yeah. Well, before we get too deeply into how this is playing out politically and what some of the big issues that are at stake here, could somebody just walk us through the specifics of this particular case and the decision? Carlos, I have a feeling actually sat down and read the entire decision and all the dissents. (LAUGHING) So I’m going to call on you.

Where would you — where would you get that? Where would you get that idea?

Oh, Carlos.

Yes. I just assumed we all did. But I will go ahead. Yeah, I read it last night. Actually, I do recommend that folks read it. It’s incredibly interesting.

So as Lydia said, the Alabama Supreme Court ruled that frozen embryos can be considered children, referred to them as extrauterine children under state law. The case that led to that ruling involved three couples whose frozen embryos were accidentally destroyed in a fertility clinic in Mobile, Alabama. Now, they were not harmed in the normal course of IVF treatment or in the transport of embryos as sometimes happens, but rather when someone just kind of wandered into the unlocked storage area, the cryogenic nursery, as they call it, and dropped several embryos on the floor.

Now, these couples, it’s important to know, are people who, in some cases, had already had children through IVF treatment. They sued the clinic, and also the local hospital where the storage facility was located, for wrongful death. And the court ruled 8 to 1 that the failure to secure the storage area violated the state’s Wrongful Death of a Minor Act.

The court also relied on a constitutional amendment from 2018 — pre-Dobbs, it should be noted — that recognized the sanctity of unborn life and of unborn children. Now, since the ruling came down, the Alabama State legislature has voted to protect IVF providers from lawsuits. But one thing that’s gotten a lot of attention is that while the main opinion drew largely on interpretations of state law and the state Constitution, there was a concurring opinion by the chief justice that invoked sort of very overtly religious language.

He wrote that all life is made in the image of God and that human life cannot be wrongfully destroyed without incurring the wrath of a holy God. So this has, as you can imagine, become a big part of the story of this case.

Yeah, I mean, I think this question of the wide variety of religious views on this issue is actually important. And I think there’s a pretty diverse set of views on this. Ross, maybe you can give us a sense of what the lay of the land is for Christians in particular.

I can try. It’s, I would say, in certain ways, a fairly unsettled area, where I think you have a lot of people Christians and otherwise, who haven’t necessarily thought through all of the implications of their own positions on these issues. But there is a specifically Catholic objection to IVF-style fertility treatment, which is connected to the idea that human beings should be created in the loving act of a man and woman, not in some sort of method that is alienated from that act.

It’s different from what you might call the sort of generic pro-life issue with IVF, which is not about those Catholic arguments exactly, so much as it’s just saying, to the extent that IVF involves the intentional destruction of embryos, it involves the destruction of a human life. A lot of people who are sort of generally pro-life just don’t honestly think that closely about this issue at all, sometimes have used IVF themselves, sometimes, like most people in contemporary America, know someone who’s gotten pregnant through IVF, and if some of these issues were pointed out to them, might become more concerned about how IVF is practiced, but generally just take the view that the IVF debate and the abortion debate are kind of separate.

And it’s that perspective, I think, that’s driven much of the political reaction to this, where most prominent Republican politicians, starting with Donald Trump, never —

: — never a man especially interested in moral and theological consistency, have basically come out and said, oh, you know, well, obviously, IVF should be allowed, and we want to encourage people to have families who have issues with fertility and so on, right?

All right. So taking a step back, I’m not so much fascinated by the people who object to IVF. I figure that is a pretty consistent position, from a religious standpoint, especially if you are of the mind that an embryo is a child. What I am finding completely fascinating, and I have to admit to a little bit of satisfaction on this, are the large number of ostensibly pro-life Republicans who have just, flat out, panicked about this ruling, either because they were just lazy in their thinking about reproductive rights, or because they’ve realized that they were not prepared for this outpouring of public outrage on this issue.

I mean, if you are extremely consistent in your pro-life views, you really shouldn’t back IVF. That’s pretty shabby moral thinking. I’m sorry. It just is.

Yeah. And I think there was also a lot of punditry in the immediate aftermath of Dobbs that pooh-poohed the idea that Clarence Thomas’s dissent that talked about going after Obergefell — that that was all kind of liberal overreacting, hyperventilating. And there was also a line of argument that was basically like, yeah, look, this is not going to affect birth control or IVF. This is just about abortion.

And to me, that’s a little bit like the people who are like, don’t worry. Trump will accept defeat and leave office in 2020. So I think political panic is probably the right word to describe what we’re seeing.

But it is important to stress — and I think Carlos, as the deep reader, will agree — that this decision was actually not textually based on Dobbs or on abortion law.

Yes.

It was based on laws that were in existence and were sort of accepted under Roe. As long as you had legal abortion, you also could have laws that said, if somebody injures a pregnant woman and their child dies, they can sue for damages.

But I want to jump in here and say that this being a legal issue, you use every ruling for your side’s furthering of your approach to this. You can parse this all you want to. And I’ve seen people like Ed Whelan doing this, saying, oh, it’s not really about abortion. It doesn’t really count on Dobbs.

But as we know, part of what Chief Justice Parker in Alabama has done is, he’s used every opportunity, even if it’s not really closely related to abortion rulings, to build this legal infrastructure that can then be pointed to by other courts to say, well, if this is true, then this must be true. So I am not actually comforted by whether or not this was strictly based on Dobbs or not.

No, no, I’m not —

There’s a reason we’re seeing it now.

Hold on, hold on, hold on. Carlos, you’ve been wanting to jump in.

Yeah. What’s interesting to me about the politics of this is, I feel there’s a sense in which Republicans are going to have to make up their minds about what it means to be pro-life. They’re sort of caught in a bind. As Ross mentioned, you have party leaders like Speaker Johnson, like Donald Trump, coming out in strong support of IVF.

But there is a non-trivial segment of the party, including Speaker Johnson in the past, who have supported life-at-conception acts, constitutional protections for pre-born humans. And so I think that you have to decide if being pro-life means being pro-natalist, which would make you pro-in-vitro, or pro-personhood, which would make you perhaps question in vitro fertilization much more along the lines that Ross explained. So that’s a dilemma. That’s something that they’re going to have to square. And they haven’t so far.

And what you wind up having then is that people like Nikki Haley and like the entire Senate Republican campaign arm, which sent out a memo to its candidates saying, if you don’t come out in favor of IVF, you are committing political malpractice, and this is insanity, you need to be pro, pro, pro — OK, well, if the whole idea of protecting embryos is going to be consistent, except when it suits, like, affluent people who can afford IVF, then you start to question what actually their problem is. That’s when it starts to get into, well, maybe they just only care about certain people or certain processes or things like that.

Right. And I think the context is important here. What is IVF for? And we are a group of Gen Xers, you know, Ross sort of on the cusp.

Stop. I’m in. I’m in Gen X.

Maybe.

You will not — you will not read — you will not read me out.

Whether we want you in here, Ross.

But I mean, I think we all know, personally, people who have struggled with fertility and probably know people personally who have access to IVF, right?

Tons of them.

Tons and tons of them. And you know, IVF is a really important technology that help people start families later, and that starting families later is often a way for women to have more control over how their careers unfurl. You know, so so IVF is a real felt need and, I think, a feminist drive for women to have more control over when and how many children that they have. So this is all in the same bucket as abortion, right?

Exactly.

I mean, I think that’s the — it’s fundamentally about your reproductive destiny and who gets to make decisions and on what timeline and how many children and all of that kind of stuff.

And I find it particularly rich, the conservatives who don’t like contraception, who have come after contraception on the off-chance that certain kinds prevent implantation, and they cannot abide that, because that embryo is a baby. Well, I’m sorry, but if that’s the case, you can’t back IVF, because those embryos are babies, too. And the way it’s practiced, you are looking at thousands of frozen babies in cryogenic nurseries. If you’re going to be that strict about it, you got to stick to your guns, people.

I feel like you’re angry at Republicans, whichever stance they take here.

No, no, no.

You’re basically trying to say — you’re saying to conservatives, either you have to bite the bullet and acknowledge that — which, for the purposes of this conversation, I’m happy to acknowledge — yes, I think it’s a big problem that there are hundreds and hundreds of thousands of, essentially, human beings that we keep on ice in this country. I’ll bite that bullet.

But the alternative you’re saying is, well, if you won’t bite that bullet, if you want to essentially carve out an exception for IVF, then you are a terrible hypocrite who just wants to control women’s bodies or something, when in fact, all Republicans are doing in that case is doing what Democrats do with late-term abortion, which is trying to be a little fuzzy, have it both ways, and get closer to the muddy middle on abortion, right? I mean, isn’t that what you want? Shouldn’t you be happy if Republicans are moving towards the center, rather than saying, oh, well, this just proves again that you’re building the “Handmaid’s Tale” dystopia?

Well, look, I mean, I think hypocrisy — I mean, what’s the saying? “Hypocrisy is the nod that vice gives to virtue.” I don’t expect total consistency from any politician.

But I do think that there is a sort of fundamental problem here, which is that ultimately, you have a political party, elements of which are pushing and successfully enshrining law that is really, really, really far away from what most Americans think and believe. And you can do that on the basis of a moral principle, right? I mean, if you, like Ross, believe that these are children, then just as abolitionists believe that slavery was absolutely morally unacceptable and you could do anything in order to stop it, that is a point of view, right? But there are political —

Just to be clear, it is not my position that you can do anything —

Oh, no, no —

— in order to —

Of course.

— just —

Yes. No, I didn’t — I didn’t think that it was.

Can I jump in and ask Ross, what is your position on IVF?

What is my — I think IVF should be permissible. But I think there should be limits on the number of embryos created, and there should be an effort to encourage people to only create embryos that they are likely to implant. I think there’s going to be some gray area, because obviously, the state can’t force you to implant embryos. But my goal would be to have fewer embryos on ice, which, again, is what exists, to some extent, in other developed countries.

Ross comes out for harm reduction. This is great. Carlos.

This is what the opinion — the Alabama opinion says. There’s this extensive discussion of IVF laws and regulations in New Zealand, in Australia, in Europe. I think they mentioned Italy in particular. It struck me as interesting, because I know that often in American conservative jurisprudence, it’s not cool to cite —

Socialized medicine in Europe?

— the laws of other countries. But here, it certainly was. But one thing that I am struck by in the political debate here is that I wonder if IVF is a more, sort of, politically advantageous issue for Democrats than abortion. Because just the polling suggests that there’s an overwhelming consensus in favor of IVF.

And I know I mentioned in our discussion last week with Paul Krugman how the original “it’s the economy, stupid” slogan actually was, “the economy, stupid, and don’t forget about health care.” I can imagine, in this next election cycle, a version of it being, “it’s the economy, stupid, but don’t forget about abortion and IVF.”

Yeah.

Because these are going to be — I can only imagine there will be a very significant focus for the Democrats.

Except that the Republican nominee is one Donald Trump, who everyone can sense doesn’t care remotely about abortion, except insofar as it sort of helps or hurts his political prospects, and whose immediate response to this was to come out with a guns-blazing, pro-IVF statement. So I think in that sense, like, there is some odd political neutralization of this issue by having Donald Trump, rather than — certainly than Ron DeSantis, but even Nikki Haley, as the Republican nominee.

Yeah. No, I think there’s going to be a lot of sticky questions that are going to have to be answered, and people are going to have to take stands that might be uncomfortable. And while I think it’s true that Donald Trump doesn’t give a damn about this issue and will just do whatever’s politically expedient, I think what’s clear and what’s become clear is that through the different kinds of judges who’ve been either elected or appointed in various parts of the country on the federal and state benches, the different state legislatures, some of which are really quite captured by particular political point of view and reflect some of the more extreme edges of this debate, I think there’s just going to be a lot of things like this that are going to pop up and surprise people. And that, I think, is going to be a big challenge for the Republicans to deal with.

I think that’s totally right. And it’s not just the specifics. I mean, Republicans can come out and say they don’t like — they definitely support IVF. But anything that puts the question of reproductive rights front and center makes people start to think, well, what are their motives? How far will they take this?

And there are a lot of states that are trying to get abortion access amendments or ballot measures into this election year. And that sort of thing is going to drive voters, the more that we’re talking about anything to do with reproductive rights.

All right. Let’s take a quick break. We’ll be right back.

One of the big questions that I’m hearing bubbling up in our conversation here is, I think Michelle and I feel quite strongly that this is a direct result of Dobbs. And while the argument around, is it or not, it’s all happening under the penumbra of this new era that we’re in, this new post-Roe era. And that, to me, feels inescapable.

Voters are not going to sit down and read this decision. They’re going to be like, oh my God, there’s a new thing about my reproductive rights, and they’re going to think Dobbs, whether or not the decision actually argues that. So I think you can’t really run away from it.

Perhaps the way in which the media covers these things also plays some role in influencing how voters receive rulings. Just wanted to make that —

Well, that’s true in every — that’s true of every issue.

It is. Yes, yes, yes, it is.

No, I think — I think Ross is right that Trump, as in so many things, is able to somehow get a free pass on issues of abortion or reproductive rights, because people look at him and think, like, eh, he doesn’t really think this or that. But you know what? There’s a lot of video of Donald Trump taking victory laps for his ability to get Gorsuch and Kavanaugh and Barrett on the court.

I think it’s going to be hard to make too strong a separation. And the way this Alabama ruling plays into that is interesting. Because as I read the decision, there’s one sense in which it didn’t feel like Dobbs played a major part in it.

It drew on laws and constitutional amendments that long predated Dobbs. At the same time, it also felt to me that you can have state justices feel more empowered to write rulings such as this one in a Dobbs world. Not because they draw explicitly from it, but because the window has opened more widely. There’s a cascading effect, where I think Dobbs grants a, quote unquote, “permission structure” to move in this direction.

Well, that’s what I’m saying about, it’s not the specifics of this particular case or, in some instances, abortion being kicked to the states in general. It’s the pro-life reaction to it. I think Ross is totally correct that the pro-life movement was not prepared for Roe to fall.

And they responded in ways like, for instance, thinking about making it a crime for women from a pro-life state to cross over and get an abortion elsewhere. Things like that just make people freak out. Because whatever your moral claims, people are like, well, that’s just punitive and was not what I was expecting.

Let me say something in defense of the pro-life movement in this context. I’m not — I mean, I think it’s fair to say the pro-life movement wasn’t prepared for the fall of Roe. At the same time, in fact, the pro-life movement is a bunch of people, relatively small group of people in the context of America, working in activist groups, many of them in Washington, DC, some of them around the country, who are trying to deal with the political reality of this larger thing called the Republican Party.

And it’s the Republican Party that’s totally unprepared to talk about abortion, argue about abortion, handle it in any way in public. And the pro-life movement doesn’t have the power to determine what either a random state legislator in Louisiana or Alabama does or what, you know, Donald Trump or Nikki Haley says. And what we’re witnessing playing out is, yes, it’s the failures of the movement in some way, but it’s also sort of a testament to just the limits of a discrete movement as an agent operating in a context where most of the people involved in US politics don’t want to think about abortion, don’t want to talk about abortion, and when confronted with abortion, veer in all kinds of directions —

Behave badly.

Yeah. Well, but in both ways. I think what you see with Republicans is both, on the one hand, you get the outliers who are saying things like, oh, we’re going to prosecute women and so on. And then on the other hand, you have Republican legislators who are like, what can we do to make this issue magically go away? And so you have both things going on, and I don’t think the pro-life movement has figured out what to do about that. But that’s the situation.

Look, it’s useful to compare the two parties in this regard. Not specifically on abortion, but think about what is considered to be like an extreme kind of left point of view, like defund the police. No one actually defunded the police, right? That was the thing that created this huge uproar. There were city councils that maybe, in some places, tried to do x, y, z, and then ended up not actually even really being able to do it.

And so I think that there is this kind of cohesive sensibleness that is broadly enforced in the Democratic Party, whereas it seems on the right, with the Republican Party, there are just all of these things that just keep popping up and popping up, from judges in particular places who were either elected or appointed, or state legislatures that are completely uncompetitive and therefore can play in these highly ideological spaces. So again, to me, it speaks more to the fact that the Republican Party seems like much more effectively hijacked by people who hold opinions far outside of the mainstream than the Democratic Party is at the moment.

I mean, I don’t know about that. I think that —

I mean, give me an example, please.

I think that — well, so on the Republican side, let’s see what happens with IVF, right? And we can revisit this conversation in six months or a couple of years. And if you get a bunch of Republican states that either ban IVF or sort of embrace models that effectively close all IVF clinics in the state, then I’ll agree that that is sort of a surprising example of a very small faction within the Republican Party working its will politically.

I’m pretty skeptical that that’s going to happen. I know more people who are anti-IVF, I’m sure, than anyone else who works at the “New York Times,” and I am pretty skeptical that their views are going to actually be law in Alabama or Mississippi in two years, right? But let’s see. I mean, we’ll see.

No, but Ross, I’m sorry. Can you give me — like, what’s a comparable example on the left? You’ve sort of said the comparable —

The comparable example — the way American politics works is that the comparable examples on the left tend to be in city government rather than state government.

Well, that sounds like a pretty big difference, right?

Well, I mean, which — what is more important to America? Philadelphia and San Francisco, or —

The state of Alabama?

— or a rural red state? Yeah, I think that’s — I think these are open questions. I think control of the city governments of the Bay Area is more politically important than political control of the government of Nebraska. Yes, absolutely.

OK, wait. I want to take a step back here, speaking to whether or not this is some kind of outlier example or whatever. So in the last Congress, 167 House Republicans co-sponsored the Life at Conception Act, which would confer full personhood rights —

Speaker Johnson.

14th Amendment rights.

Fertilized eggs. Then you start a battle between the rights of the mother and the rights of the fertilized egg at whatever stage, that if we’re taking this seriously, it’s going to lead to all kinds of problems, just by definition.

That’s like 167 members of the House of Representatives. That is not a fringe.

But what you see from the reaction from House Republicans to this ruling is that the people who signed on to that did not, in fact, take it seriously, which is why you see the extremely conservative speaker of the House immediately coming out with a statement in support of IVF, which is, I think, a reflection of, again, the actual position.

It sounds like, with Ross saying, don’t take the Life at Conception Act seriously, and Lydia saying, well, no one really defunded the police — it sounds like we don’t need to take seriously the sort of fringier positions on either side of the spectrum here. And that’s great. But it really says something about what we mean when we speak out in politics.

I think this question of, oh, let’s not take the extremes of either party seriously is actually not what I believe, Carlos. I think these voices, and particularly if they bubble up into state-level politics or national politics in a meaningful way, we should take them seriously. I think Defund the Police never took off as a thing that actually happened.

But I think it had real political consequences for Democrats. Democrats have never been seen as particularly strong on crime. And that movement, I think, really harmed Democrats with voters. And I think something very similar is going on here. There’s already a belief and an inclination to not trust Republicans when they suddenly backpedal and say, no, no, no, no, no, no, no. Because the reality is, this is a country where there is majority support for abortion. The polling is — we can argue and dice the polling one way or whatever. Even Donald Trump who, our colleagues reported, favors a 16-week abortion ban because it’s a nice round number, four months — I think that one of the core questions here is like, in a democracy, to what extent should policy and the policies that these parties are putting forward respond to the beliefs of the people who live in that country? And how far over your skis can you get from public opinion, particularly through the courts?

I think the question you raise is incredibly important. What I found interesting in both Dobbs and in the Alabama ruling is how they both recognized that what they were doing could be the cause of great social upheaval, and certainly controversial. But they both basically said, that’s not our problem. In the Alabama ruling, it says that the text of the Wrongful Death of a Minor Act is sweeping and unqualified.

It applies to all children, born and unborn, without limits. It’s not the role of the court to craft a new limitation based on our view of what is or is not wise public policy. And Alito, in Dobbs, said something very similar. He was talking about Casey versus Planned Parenthood, the 1992 case that upheld Roe but with some limits.

He wrote, “the Casey plurality was certainly right that it is important for the public to perceive that our decisions are based on principle,” i.e. not just political decisions, right? “And we should make every effort to achieve that objective by issuing opinions that carefully show how a proper understanding of the law can lead to the results we reach. But we cannot exceed the scope of our authority under the Constitution, and we cannot allow our decisions to be affected by any extraneous influences, such as concern about the public’s reaction to our work.”

So like, public opinion, public reaction, the social context in which these opinions land is irrelevant in this view. And both the Alabama decision and Dobbs present that point of view, which, in a kind of jurisprudential sense, sounds very sage, but to your point, when it means that courts are getting well past public opinion, can cause a huge backlash, not the least of which is to the legitimacy of those institutions themselves.

I think that’s absolutely right. And I suspect we’ll have lots more to say on this issue. And I am sure that our listeners do, too. So listeners, we want to hear where you think the abortion debate is headed. Share your thoughts on this episode with us in a voicemail by calling us at 212-556-7440, or send us an email at matterofopinion@nytimes.com. We’ll be right back.

So we missed you dearly last week.

Terribly.

Aw.

But in your absence, we recruited our colleague in Times Opinion, Paul Krugman, to talk about the economy and how it will play a role in the presidential election. And then, we asked listeners how, if at all, the state of the economy would impact their vote. And there was one answer that we heard over and over again.

Huh.

Ah, he’s hardcore. I like it.

Wow.

So one of our listeners, Larry in South Bend, Indiana, did —

South Bend! University of Notre Dame!

Give it up for Carlos —

Go Irish!

That’s right.

Go football!

All right. So Larry did point to rising housing costs and food costs as factors that might influence his vote. But overall, our very unscientific measure of listener responses does align with Paul Krugman’s opinion that the economy likely won’t be the main factor driving voters’ decisions this election.

Can I — I just want to suggest that the listenership of our podcast might not be fully representative.

What, you don’t think we’re the heartbeat of America?

Whoa, whoa.

Of the nation. I just —

What do you mean?

I just — I love our listenership. They’re the best people, the finest people. But yeah, I think this was a slightly unscientific poll.

Aren’t we anti-science? We’re anti-science, aren’t we?

I suspect our listeners are more varied than this crew is currently giving them credit for.

Now, OK. We can conclude that —

No, they’re varied. It’s a diverse tapestry, Carlos. I just — I just think there might be a skew towards what you might call postmaterialism in voting behavior.

All right. Trump voters out there need to call us this week. If you are listening, please, please phone us.

Or people who are voting for Joe Biden because they love the Biden economy, right? Where are those — where are those guys?

Bidenomics, baby.

All right, guys. That’s it for this week. Thank you so much for joining us. It was wonderful to see you all.

Great to have you back, Lydia.

Thank you.

Yes, Lydia.

See you next Friday.

Bye.

See you guys.

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