The Alabama Supreme Court decision on IVF and the GOP’s frantic reaction to disavow it, coupled with the string of GOP electoral losses on abortion, demonstrate the incoherence, contradictions and confusion on the merits and popularity of their position. A few key points on how IVF is done and the facts of the case illustrate this.

As currently practiced, doctors retrieve eggs then fertilize them with sperm; both sperm and eggs are obviously both human and alive and so already constitute human life. They create as many embryos as possible, then freeze them, sometimes for decades, for later use (in contrast, trying that with a 1-month-old child results in death). The embryos are rated for quality and defects. Only higher-quality embryos are transferred into the uterus. Multiple embryos are often transferred during each cycle in the hope that even one will result in a live birth. For a variety of reasons, only a third of eggs are successfully fertilized and make it to the six-cell blastocyst stage; of those that do, the majority do not result in a live birth.

For conservative Alabama to pass legislation that protects patients, doctors and clinics engaged in the above process is to concede some of the pro-choice side’s most essential points:

• This is health care, and the decision-making authority lies with the women and doctors involved.

• The right to decide the moral status of the embryo belongs with the woman or couple involved; it is not involuntarily assigned to external third parties (e.g., churches, politicians, courts). A recent poll by the Economist showed that this opinion is held by an estimated 79% of Americans.

The majority opinion summed up the plaintiffs’ (three couples) contractual agreements as follows: to “destroy any embryos that had remained frozen longer than five years,” or to donate them to researchers whose projects would “result in the destruction of the embryos,” or to allow any “abnormal embryos” to be experimented on and then “discarded.” These contract terms are typical and underscore the point that even the “parents” of these embryos think of them as their property, to be negotiated about and treated as any other property they own and can dispose of as they wish.

If the court believes that these embryos are “unborn children” protected by wrongful death law, then none of these alleged agreements are legally valid under standard principles of contract law, as you can’t contract for the death of human beings. It follows that a wrongful death suit would therefore be appropriate against both the clinic and those who decided to freeze their embryos, including those who brought the suit to begin with. As no such charges have been brought, even the state of Alabama doesn’t believe the argument their Supreme Court is making; nobody else should either.

According to Alabama Chief Justice Tom Parker, the Court’s conditions for continuing IVF include these: every embryo, no matter how many there are and no matter how poor each one’s quality or severity of defects might be, must be transferred. Only one embryo may be transferred at a time. If the cycle fails, the whole process must start all over again. Given the low success rate for IVF, this would result in years of forced pregnancy, serial miscarriage or likely failure and multiple forced births.

While turning women into controllable forced breeding machines may be the fondest wish of some on the right, its unpopularity would easily dwarf that of their failed electoral attempts on abortion.