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Wednesday, February 21, 2024

Take Back the Court on LePage v. Center for Reproductive Medicine

This essay is by Sarah Lipton-Lubet and Take Back the Court, reposted here with permission:

Another Shitty Day to be a Woman in America

The move from Dobbs to banning IVF was faster than even I imagined.

By Sarah Lipton-Lubet and Take Back the Court

We’ve all seen how the overturning of Roe has empowered radical judges to act out their reactionary fantasies as if they were writing dystopian fiction rather than adjudicating actual cases with incredibly serious consequences for millions of people.

Last week, the Alabama Supreme Court took the (latest) prize.

That court held – 7 to 2 – that embryos frozen in IVF procedures are “children” under state law. The court held that therefore children and unborn children – including frozen embryos (which are actually blastocysts, a pre-embryonic phase), or in the court’s parlance “extrauterine children” – are protected “equally” under the state’s Wrongful Death of a Minor law, which allows civil damages. 

The court based this conclusion on the 1872 Wrongful Death statute, and a 2018 ballot measure that amended the state constitution to “recognize and support the sanctity of unborn life,” and said that the amendment requires the court to “construe ambiguous statutes in a way that ‘protect[s] … the rights of the unborn child’ equally with the rights of born children.”

In its opinion, the court stated that “[u]nborn children are "children" under the Act, without exception based on developmental stage, physical location, or any other ancillary characteristics.” And the court went out of its way to hypothesize additional future implications. I have to include this excerpt in full, partially to remind myself that it’s actually real:

“For instance, one latent implication of the defendants' position [that frozen blastocysts aren’t the same as actual children] -- though not one that the defendants seem to have anticipated -- is that, under the defendants' test, even a full-term infant or toddler conceived through IVF and gestated to term in an in vitro environment would not qualify as a "child" or "person," because such a child would both be (1) "unborn" (having never been delivered from a biological womb) and (2) not "in utero." And if such children “were not legal "children" or "persons," then their lives would be unprotected by Alabama law. The plaintiffs argue that this sort of unequal treatment would offend the Equal Protection Clause of the 14th Amendment to the United States Constitution, which prohibits states from withholding legal protection from people based on immutable features of their birth or ancestry. These are weighty concerns.”

And then there’s the chief justice’s concurring opinion, which is basically a theocratic screed. He quotes the Bible extensively, including that a person's life "cannot be wrongfully destroyed without incurring the wrath of a holy God."

"It is as if the people of Alabama took what was spoken of the prophet Jeremiah and applied it to every unborn person in this state: 'Before I formed you in the womb I knew you, Before you were born I sanctified you,'" he said, quoting Jeremiah 1:5 in the Bible.

While it is appalling to see passages like these written by judges (especially ones who are supposed to be bound by a constitution separating church and state), the invocation of this language doesn’t come out of left field. 

“Personhood” – legal rights for “unborn children from the moment of conception” – has been a strategy the anti-abortion right has been trying to put in place for decades as a way to undermine Roe and lead to its eventual overturning. 

And when supporters of reproductive rights sounded the alarm that this would not only harm abortion rights (which is more than reason enough to vehemently oppose it on its own), but would also imperil IVF and fertility treatments, anti-abortion activists claimed we were lying. In fact, the leader of the effort to add this language to the Alabama constitution in 2018 referred to warnings about the impact on IVF as “scare tactics” and “so overblown that it’s almost hysterics.” 

I think we can pretty definitively say at this point that anytime someone says we’re being hysterical about something repro related, what they actually mean is: “this is, in fact, exactly part of our plan and will absolutely happen if we’re in charge.”

A quick glance at the reaction of anti-abortion groups proves the point:

    • Denise Burke, senior counsel with the Christian anti-abortion group Alliance Defending Freedom, called the ruling a “tremendous victory for life.” 
      • ADF is the group behind the pending threat to mifepristone access, 303 Creative (the anti-LGBTQ rights case from last term), and a whole bunch of others. If you want to know what is on the Christian right’s agenda – and the goals of their friends on the courts – ADF’s legal priorities provide a pretty good guide.
    • Lila Rose, founder and president of the anti-abortion group Live Action said in a statement that “The Alabama Supreme Court decision should be applauded and used as a model of honest and prudential jurisprudence nationwide.”

So what does this mean going forward?

In Alabama, it most likely means the end of IVF in the state. This is in part because the ruling is likely to make the procedure prohibitively expensive for doctors to practice there (and for patients to access, for many of whom IVF is already financially out of reach), and in part because of the Alabama court’s uncertain next moves. We don’t know what these judges will do next, or what new theories they’ll invent to criminalize providers and patients. 

Already, as data from Pregnancy Justice illustrates, “Alabama accounts for nearly half of all criminal cases related to pregnancy across the country.”

More broadly, the decision could set off a wave in other states.

    • According to Pregnancy Justice, “At least 11 states have broadly defined personhood as beginning at fertilization in their state laws.” 
    • Some states may be taking the stealth strategy. For example, in Tennessee, after Dobbs an anti-abortion activist told Republican lawmakers to “wait a few years” before talking about IVF and how to regulate it.
    • And then there’s Florida, where last week, even before the Alabama decision, the chief justice of the Florida Supreme Court raised questions about personhood in a challenge to a proposed ballot measure that would protect abortion access in the state. Now that the Alabama Supreme Court has ruled in LePage, the activists bringing the Florida challenge have already said they’ll use it to their advantage.

“Every human life begins as an embryo, and now the Alabama Supreme Court has upheld the decision of its citizenry that every unborn life should be protected, no matter their stage or location. . . . This important ruling has far-reaching implications. Liberty Counsel is using this precedent to argue that Florida’s proposed deceptive and misleading abortion amendment violates Florida’s own laws that routinely recognize that an ‘unborn child’ has the legally protected rights of a person. Unborn life must be protected at every stage,” said Matt Staver, founder of Liberty Counsel.

    • In fact, Liberty Counsel has already filed a supplemental filing in Florida using LePage.

And there are national implications. With right-wing groups like the Heritage Foundation spreading misinformation and fabricating narratives that equate IVF with “circumvent[ing] the natural body and God’s “package deal” of marriage, sex, and procreation,” it’s not hard to see where this movement’s aims lie when it is able to gain even more power.

In a nutshell, this is the guiding theory of people who are planning what a second Trump term would look like: for example, the Center for Renewing America, a think tank run by Trump’s former OMB Director, Russell Vought. Vought himself defines Christian nationalism as: “An orientation for engaging in the public square that recognizes America as a Christian nation, where our rights and duties are understood to come from God.”

As Sarah Posner writes for MSNBC, “When activists warmly embrace the Christian nationalist label, they are very loudly telling you exactly who they are.” 

With right-wing extremists like these waiting anxiously for their next opportunity to step back up to the policymaking plate, it’s clear how this case from Alabama has huge implications for all of us — no matter where we live, whether we’re trying to start a family or wanting to end a pregnancy, or if we care about any of our fundamental reproductive and sexual rights. 

No doubt, there are plenty of people who will try to argue when we talk about this danger that we’re “overreacting,” or “hysterical.” That’s when we know that we need to be even louder.

As of today, mirroring many healthcare clinics’ fates after the Dobbs decision, University of Alabama at Birmingham has halted IVF procedures out of fear of legal action against providers and patients. This is just the beginning.

As Jonathan Mitchell, author of SB 8, Texas’s bounty hunter abortion ban and Trump’s personal lawyer, said, “I think the pro-life groups should keep their mouths shut as much as possible until the election.” 

They’ll keep trying to hide what they’re doing, so it’s essential that we don’t let them.

Sarah Lipton-Lubet is president of Take Back the Court

Posted by Steve Lubet on February 21, 2024 at 08:28 PM | Permalink


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